Acknowledging Implicit Bias to Support a Culture of DE&I

Alexandra P. Wright

Diversity, equity and inclusion has been a major topic of discussion in recent years. Organizations such as the American Bar Association and the National Association for Law Placement have made efforts to advocate for diversity, equity and inclusion in the legal profession by working to educate those in the profession, as well as students who will someday join the profession, on how to be an advocate. However, despite the efforts put in by organizations such as the ABA and NALP, as well as many other organizations, there is still extensive work to be done to ensure there is diversity, equity and inclusion in all areas of the legal profession.

In order to build a culture of diversity, equity and inclusion in a firm or other legal organization, change undoubtedly must be made at the organizational level. However, for any changes implemented at the organizational level to truly be effective, all members of that organization must take the first steps to supporting a diverse culture by acknowledging their own implicit biases and actively interrupting them.

What is implicit bias?

When I first started practicing law, one of the things that I was most excited to do was meet with potential clients without a supervising attorney and begin to develop my own client relationships. When the time came for me to have my first meeting, I was so excited (and extremely nervous!). I went into the room and introduced myself to the potential client. We both sat down, and I began to ask substantive questions about their legal issue. After responding to my first few questions, they stopped and asked if we could wait for the attorney to join the meeting so they wouldn’t have to repeat anything. It became clear to me that the potential client didn’t realize I was the attorney, but instead assumed I played a different role in the firm.

According to the National Institutes of Health, implicit bias is a form of bias that occurs automatically and unintentionally that nevertheless affects judgments, decisions and behaviors. Implicit bias is shaped by many things including our surroundings, experiences and cultural history. Implicit biases can be positive or negative associations about things such as gender, religion, sexuality, race or other characteristics. Importantly, implicit biases are made almost entirely on an unconscious level. Thus, a person can have a conscious belief about an issue and still have implicit biases that are contradictory to their conscious beliefs.

In my experience with the potential client, I had no reason to believe that the potential client had ill intentions or a conscious belief that I could not be an attorney when they assumed that I was not the attorney they were meeting with. They were very polite when answering my initial questions and were also polite when they asked if we could wait until the attorney joined our meeting for the remaining questions. Regardless of the potential client’s intentions, they made an assumption about my role at the firm.

It is no secret that throughout the history of the legal profession, the majority of attorneys have been men. In 2022, according to the American Bar Association’s National Lawyer Population Survey, 62% of the active attorneys reported in 2022 were men and 38% were women. There is no way to prove that the potential client assumed that I was not the attorney because I am a woman. However, when taking into account the history of women in careers such as the legal profession, it is not unlikely that the potential client harbored an implicit bias about what role a woman plays in an office.

How can we interrupt our implicit biases?

Given that implicit biases are almost always made on an unconscious level, it requires us to put in the effort become conscious of them and interrupt them. A way to actively put in an effort to interrupt your implicit biases is to keep track of things that surprise you.

For example, imagine that someone in front of you is wearing a full football uniform from the helmet down to the football cleats. This individual is facing away from you, so you can’t see their face. Do you assume that this individual is a man? Would you be surprised if, when they removed their helmet and turned around, you realized that it was a woman? This is an implicit bias that most individuals would likely make. In societal history, even today, football is a predominately male sport. There is nothing to say that a woman can’t play football. However, the assumption remains that the majority of individuals who play football are men. The assumption that the person in the football uniform was a man was likely not made with ill or malicious intentions. Instead, the assumption was made based on the cultural and societal norms that are still very prevalent today.

A more relevant example in the legal profession is the following: Imagine that you meet a woman of color for the first time. You have no knowledge of her background, including her educational history, where she grew up, where she currently lives or any other background information. During the conversation, she tells you that she is the managing partner of her law firm. Does this surprise you? If yes, then stop and ask yourself why you are surprised. It may be uncomfortable to face your implicit biases and question yourself on why something surprises you, but the uncomfortable questions are a part of interrupting your unconscious way of thinking so that you can consciously make better decisions.

In your law firm or legal organization, it is important to actively work to interrupt your unconscious bias every day. If you find yourself interacting with certain people in your office more than others, ask yourself why. If you find yourself surprised when an individual in your office receives a favorable settlement or judgment on a case, ask yourself why. Are you surprised because of their past performance on cases, or are you surprised because of an implicit bias that you may be harboring?

Without asking ourselves these questions, it can cause those in diverse and underrepresented groups to miss out on things such as networking opportunities, client relationships, promotions and much more. On the other hand, if everyone puts in the effort to ask the hard questions and interrupt their implicit biases, it can help create a space that promotes a culture of diversity, equity and inclusion.•