As stated in the rules of professional conduct, a lawyer, as a member of the legal profession, is an officer of the legal system and a public citizen who has special responsibility for the quality of justice. The pursuit of fairness and objectivity underpin our profession and yet studies show that we harm our fellow colleagues and perpetuate disparities unthinkingly and unintentionally because of our unexamined implicit biases.

Even small amounts of bias can have big effects on progression and representation. One study used a mathematical model to see what would happen if there were only a five percent gender bias in performance rankings—a much smaller level of bias than exits in many companies today. After eight rounds of promotions, an organization that started out with 58 percent women would have only 29 percent women.[1] Another study found that small amounts of gender bias in law firm performance evaluations made it nearly three times more likely that men would be promoted to partner.[2] Like interest, bias compounds.

By acknowledging that we both inadvertently discriminate and value fairness and equality, we can be moved to action so that what we believe and what we do become internally consistent. This action requires persistence and changing the way we work so that bias does not unknowingly creep into our decisions. The information below provides a brief overview of implicit bias and individual actions you can take to disrupt its transmission to make fairer decisions and advance equity in your work.

What is implicit bias?[3]

• Implicit bias refers to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.
• These biases, which encompass both favorable and unfavorable assessments, are activated involuntarily and without an individual’s awareness or intentional control. 
• The implicit associations we harbor in our subconscious cause us to have feelings and attitudes about other people based on characteristics such as race, gender, age, and appearance.
• These associations develop over the course of a lifetime beginning at a very early age through exposure to direct and indirect messages. In addition to early life experiences, the media and news programming are often-cited origins of implicit associations.

A few key characteristics of implicit biases.[4]

• Implicit biases are pervasive. Everyone possesses them, even people with avowed commitments to impartiality such as judges.
• The implicit associations we hold do not necessarily align with our declared beliefs or even reflect stances we would explicitly endorse.
• We generally tend to hold implicit biases that favor our own ingroup, though research has shown that we can still hold implicit biases against our ingroup.

How can our implicit biases impact opportunity?[5]

• According to research studies, the following opportunities are shared unevenly with historically excluded/underrepresented attorneys (e.g., women, people of color, LGBTQ+ folks, and individuals with disabilities) by attorneys in positions of power and influence, with unchecked implicit bias accepted as the major cause.
  • Networking – informal and formal
  • Access to decision makers
  • Mentors and sponsors
  • Meaningful work assignments
  • Candid and frequent feedback
  • Training and development
  • Client contact
• A specific type of implicit bias—affinity bias, which is a bias for others who are more like you—plays a significant role in driving opportunity disparities in law firms as it causes people to develop deeper work relationships with those who have similar identities, interests, and backgrounds.
• When senior lawyers (the vast majority of whom are white men) gravitate and share opportunities with others who are like themselves, they disproportionately limit historically excluded/underrepresented attorneys from these critical opportunities—enough to make a material difference in how their careers progress compared with lawyers who have greater access to these opportunities.

What are bias interrupters?[6]

• Bias interrupters are evidence-based tweaks to basic business systems (hiring, performance evaluations, assignments, promotions, compensation) that mitigate implicit bias in the workplace.
• Organizational bias interrupters change existing business systems; individual bias interrupters are steps individuals can take on their own to help level the playing field in their workplace.
• Bias interrupters change how we work to disrupt the transmission of bias in our decision-making, which leads to more diverse and better performing workplaces.

Examples of individual bias interrupters you can implement to make fairer decisions and advance equity within your work.

1. Balance opportunities in a free-market assignment system.[7]
   • When assigning a project, review the entire list of associates who are eligible to complete and/or lead the project. By consulting the written list, you don’t rely on your mental list, which may be skewed towards people who are more like you due to affinity bias.
   • Keep track of your assignment decisions and rotate projects among the eligible associates to ensure that you are providing equal and fair opportunities across the team.
2. Learn how to spot bias.[8]
   • Before completing your next round of performance evaluations, watch this short two-minute video and read the Identifying Bias in Performance Evaluations Guide.
   • Before conducting your next recruiting interview read the Identifying Bias in Hiring Guide.
3. Audit your mentoring engagements and networking invitations.
   • On a quarterly basis, review your mentoring engagements and networking invitations and reflect on the diversity (e.g., gender, race, and ethnicity) of those individuals. Is the group diverse or homogenous and in what ways? Do you share the same social identities as those individuals?
   • If you share the same social identities as the group, then proactively seek out individuals who are different from you for your next round of mentoring engagements and networking invitations to diversify your circle. Review these tools from Rutgers on strategies for inclusive mentoring.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

Kristen Matha serves as Ice Miller's Director of Diversity and Inclusion. She is responsible for operationalizing the Firm's diversity and inclusion strategy using a data-informed and collaborative approach. In her role, Kristen is focused on developing equitable systems and processes that grow a more inclusive culture. 

[1] Richard F. Martell, David M. Lane, and Cynthia Emrich, “Male-Female Differences: A Computer Simulation,” American Psychologist 51, no. 2 (1996): 157.

[2] Monica Biernat, M.J. Tocci, and Joan C. Williams, “The Language of Performance Evaluations: Gender-Based Shifts in Content and Consistency of Judgement,” Social Psychological and Personality Science 3, no. 2 (2012): 186-192.

[3] The Kirwan Institute for the Study of Race and Ethnicity, https://kirwaninstitute.osu.edu/article/understanding-implicit-bias

[4] Id.

[5] Kathleen B. Nalty, “Going All-In on Diversity and Inclusion,” The Law Firm Leader’s Play Book, (2015): 17-20.

[6] The Center for WorkLife Law UC Hastings College of the Law, https://biasinterrupters.org/

[7] Vernā Myers, The Vernā Myers Company, https://www.vernamyers.com/

[8] The Center for WorkLife Law UC Hastings College of the Law, https://biasinterrupters.org/