Cindy-Ann Thomas, co-chair of Littler Mendelson’s employment and diversity practice, has been giving unconscious bias trainings to clients for nearly two decades. This year, she’s training the firm’s own lawyers, and she’s preparing a little bit differently.
That’s because lawyers can be a tough audience, resistant to the idea that they might be behaving unfairly, according to Thomas.
“As attorneys, from 1L, it’s ingrained in us that we are there as advocates of and champions for justice,” Thomas said. “So when we are being taken to task for our biases, which are part of the human condition for everybody, it feels like an attack on who we are and what we stand for.”
“We link bias with being unethical,” she added. Thomas said the only other groups she finds as difficult to teach as lawyers are medical professionals and academics.
In response to the #MeToo movement, a surge in discrimination lawsuits against Big Law, and pressure from clients to improve diversity, firms are increasingly seeking out unconscious bias training for their lawyers and staff. But some experts say lawyers require a slightly different training approach.
Unlike explicit biases, unconscious (or implicit) biases are automatic, unintentional, and deeply ingrained stereotypes that affect people’s behavior. Most people acting on unconscious biases don’t know that they’re doing so.
In unconscious bias training, facilitators generally explain how these biases work, showing examples of how people can make snap judgments about others based on their race, age, gender, or other identity. Some trainings involve PowerPoint presentations, while others take the form of group discussions.
“There’s been an uptick in the last couple of years,” Paula T. Edgar, a partner at Inclusion Strategy Solutions, said of law firm trainings. “A lot of times the conversation around diversity has only been around large law firms— a lot of mid-size and small law firms also see a need to train their lawyers on diversity and bias.”
When she’s teaching lawyers, Thomas uses the first few minutes of every presentation to quickly explain that bias is a normal biological function, and to dispel any assumptions that only unfair or unintelligent people are biased. She backs up her points with with research about how the human brain processes information. “With attorneys, a good program usually consists of a presentation of the evidence,” she said.
Lawyers need far more evidence than other audiences, according to Edgar. When she and her partner teach lawyers, “we tend to have more studies and more statistics about diversity in the legal profession,” she said. For example, a 2014 study found that law firm partners gave more positive feedback to a memo written by a hypothetical white associate than the same memo written by a hypothetical black associate.
“Lawyers are trained socratically, and the way you present to them has to be socratic,” said Stephen Paskoff, president and CEO of the workplace consultancy ELI. “Do not make it look like CLE.” Instead of simply lecturing, Paskoff typically asks lawyers questions and then uses their answers to build a case for why implicit bias is important.
Paskoff said another strategy with lawyers, particularly litigators, is to show them that unconscious bias is harmful, even if it can’t be proven in court.
“Several years ago, I did a program for an outstanding major law firm based in Atlanta,” he said. “One of the litigators said, ‘Well, we could win that case.’ I said, ‘You could win the case, but in winning the case, you might end up spending hundreds of thousands of dollars in fees, you might get bad publicity, and you might not be able to attract good people. If a client came to you with those risks, wouldn’t you say a lawsuit is not something you want to win here?’”
Paskoff, a former trial attorney for the Equal Employment Opportunity Commission, also believes his own legal background gives him a “badge of credibility.”
“Sometimes lawyers are status conscious and they have to hear it from somebody of their own before they’ll listen,” he said.
But lawyers don’t need to be handled with kid gloves, according to diversity and inclusion consultant Kathleen Nalty, who estimates that she’s trained thousands of lawyers in law firms over the past six years.
“I don’t think that lawyers need to be or expect to be trained any differently than anyone else,” said Nalty. Interactive and intellectually stimulating trainings are the best for everyone, no matter what their profession, she stressed. “The only difference with lawyers is they’re so smart and they’re so highly intellectually engaged that I have to conduct my training at a faster pace.”
But Nalty, a former federal civil rights prosecutor, said she does understand how to speak like a lawyer. “That probably helps a lot,” she said.
Whether or not individual lawyers take their unconscious bias training seriously, a bigger barrier to diversity and inclusion in Big Law is firm culture, according to Thomas. If firms require unconscious bias training but continue to hire and promote badly-behaving lawyers simply because they’re rainmakers, they can’t expect their cultures to change, she said.
“We are a tradition-bound profession,” she said. “The commitments to changing culture can’t end with the training. It’s where the work on unconscious bias actually starts. The hard part is reviewing and evaluating existing processes and structures.”