DIVERSITY AND INCLUSION
How to Minimize
Implicit Bias (and
Maximize Your
Team’s Legal Talent)
Giving Feedback
Across Differences
By Lory Barsdate Easton
and Stephen V. Armstrong
Unconscious cognitive
and psychological
processes can interfere
when lawyers are giving
and receiving feedback on
professional performance.
Nearly all of us work with lawyers who differ from us in
gender, race, religion, sexual identity, educational history,
socioeconomic background, nationality, and any number
of other demographics. We must teach and learn across
these differences to create collaborative, productive legal teams. Feedback is
perhaps the most powerful method for
enhancing lawyers’ professional development. But when we give or receive feedback
across differences, subconscious processes
can interfere and make the feedback less
effective or even counterproductive.
This article focuses on three of these subconscious processes—implicit biases, stereotype threat, and racial anxiety—in the
context of lawyers’ professional development. These subconscious processes can
skew formal evaluations. They can disrupt
informal interactions and teaching moments between junior and senior lawyers.
They can even distort our perception of the
“facts” of someone’s performance, dooming
the feedback even before it is given. This is
really bad news for all of us who are working
to develop excellent lawyers. We believe we
are operating in a rational meritocracy, but
our subconscious cognitive processes can
be anything but meritocratic or inclusive.
The good news is we can do something
about it. We can recognize and, where
necessary, disengage these unconscious
processes. We can use research- and
experience-­based techniques to minimize
their harmful effects. And we can learn
how to provide constructive feedback in
ways that draw lawyers who are different
from us into our “ingroups” and make our
teams genuinely inclusive.
Lory Barsdate Easton is the principal of Barsdate Consulting LLC, which offers consulting for law firms
on professional development and diversity issues as well as coaching for individual lawyers. Ms. Easton is
a recently retired partner of Sidley Austin LLP in Washington, D.C. She has been a member of DRI for more
than 20 years. Steve Armstrong is a principal of Firm Leader, Inc., which provides professional-­development
and talent-­management programs and consulting services for many leading law firms in the U.S., Canada,
and internationally. The authors wish to thank Crystal N. Kaldjob for her assistance with this article. Ms.
Kaldjob is an associate in the Banking and Financial Services group at Sidley Austin LLP and an associate
co-chair of Sidley’s Washington, D.C., office diversity committee.
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© 2016 DRI. All rights reserved.
We Are Not Reptiles, but We
All Are Biased—Get Over It
Defense lawyers are very familiar with
the so-called “reptile” strategy, plaintiffs’
model of trial advocacy that manipulates
jurors by scaring their primitive “reptilian” brains. Defense lawyers also know
that the “reptile” strategy mischaracterizes
brain anatomy and oversimplifies complex
neurological processes—and, by trying to
bypass rational decision-­making, arguably
disrespects jurors and the entire civil justice system. Nonetheless, a powerful cognitive reality lurks behind the “reptile”
strategy: Subconscious cognitive and psychological processes do influence many of
our judgments, choices, and conclusions,
far more than most of us realize.
We are not “reptiles,” and not all of these
subconscious processes are rooted in “reptilian” fear or self-­preservation. But they are
hardwired in us. They enable us to grasp,
organize, and retrieve information with
amazing efficiency. They shape our perceptions and actions. And they can capture our
decision-­making without our realizing it.
Moreover, because they sometimes rely on
assumptions about people and even stereotypes, they can profoundly affect how we
interact with and judge others. As a result,
they can have some unfortunate side effects.
What are these subconscious phenomena, and how do they play out when lawyers
are giving and receiving feedback on professional performance? (Some researchers
draw a distinction between “subconscious”
and “unconscious” processes: The former
can be brought to conscious awareness if
we direct our attention to them, but the latter cannot. For our purposes, the distinction is not critical, and we use both terms
to describe the mental processes outside of
our awareness.)
Implicit Bias
“Implicit bias” is the unconscious association of stereotypes with particular groups.
There is now substantial empirical support
for the claim that most people—even those
who explicitly and sincerely declare egalitarian views—hold implicit biases regarding
women, people of color, gay people, heavy
people, and so on. (To a lesser degree, this is
true even of members of those groups.) Most
of us try our best, of course, to avoid judging individuals by applying stereotypes, par-
ticularly the negative ones that our culture,
upbringing, or experience have thrust upon
us. Yet emerging research shows that we often fail to filter out these implicit biases in
the workplace and beyond. This is primarily because we cannot be directly aware of
them, although we can learn to recognize
their effects.
Stereotype Threat and Racial Anxiety
Where negative stereotypes may be in play,
individuals in a stereotyped group are in
a predicament. They are at risk of confirming negative stereotypes about their
group. When this “stereotype threat” is
triggered, it generates a subconscious cascade of stress responses that interferes with
performance. A variation on stereotype
threat—essentially, its flip side—is “racial
anxiety,” a fear of being perceived as racist
or insensitive when interacting with others who are different from us. This discomfort in anticipation of interracial or other
cross-­difference interaction can translate
into stilted, awkward encounters or avoidance and can compound the effects of both
implicit bias and stereotype threat.
Really, We All Are Biased—
and We Can Get Over It
Implicit Preferences
“Implicit social cognition” is the field researching and describing the cognitive processes that occur outside of our conscious
awareness and control and that involve social judgments. Psychologists distinguish
“explicit” cognitions, which we know about
and can articulate, from “implicit” or unconscious cognitions. In social contexts, psychologists study both attitudes, which are
evaluative preferences (“I like Lithuanians”),
and stereotypes, which are beliefs about a
group’s characteristics (“Lithuanians are
smart”). If an attitude or stereotype is “implicit,” we are not aware of it.
In the past three decades, social psychology, cognitive psychology, and neuroscience have provided remarkable insights
about how our brains process social categories. Key conclusions have included
(1) that implicit preferences for the groups
to which we belong (ingroups) as well as
socially valued groups are widespread, and
(2) that implicit biases can influence behavior in the real world. Studies also demonstrate that people can override the effects of
implicit bias and even change their implicit
social cognitions. See generally Kristin A.
Lane et al., Implicit Social Cognition and
Law, 3 Ann. Rev. Law & Soc. Sci. 427, 431–
39 (2007).
Implicit Resistance?
In training lawyers regarding unconscious
bias, we have encountered skepticism and
Emerging research s hows
that we often fail to filter
out these implicit biases in
the workplace and beyond.
This is primarily because we
cannot be directly aware of
them, although we can learn
to recognize their effects.
even some outright hostility both to the
concept of implicit bias and to the notion
that it might apply to them. Lawyers pride
themselves on rationality and fairness. Law
offices and chambers are designed to be
meritocracies. We really like to think that
we live and compete in a tournament of talent that is color-blind, gender-blind, and
social category-blind. We succeed by brilliance, merit, and the sweat of our brows—
and the losers are just whiners.
We know there is a risk that fair-minded
lawyers will bristle if they feel accused
of harboring any type of bias that could
interfere with objective and fair evaluation of another lawyer’s performance. But
by raising implicit bias, we are not accusing lawyers of being closet bigots. We are
just reporting the fact that humans can
genuinely believe in equality, and actually
be largely free of conscious biases, while
simultaneously and unconsciously behaving in a way that favors some groups of people over others.
If you are bristling at bit nonetheless, here are four reasons you should
keep reading:
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DIVERSITY AND INCLUSION
• Reason No. 1: We all have a “bias blind
spot.” Research shows that we all think
that we are less biased than our peers. In
one study, ninety-seven percent of judges
rated their ability to “avoid racial prejudice in decisionmaking” to be higher
than that of half of the other judges participating in the study. Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias
We are just reporting
the fact that humans can
genuinely believe in equality,
and actually be largely
free of conscious biases,
while simultaneously and
unconsciously behaving in a
way that favors some groups
of people over others.
Affect Trial Judges?, 84 Notre Dame L.
Rev. 1195, 1225–26 (2009). We seem to
think that we live in a Lake Wobegon of
fairness, where all of us are “above average” at avoiding bias. “We use introspection to acquit ourselves of accusations
of bias, while using realistic notions of
human behavior to identify bias in others.” Richard A. Posner, How Judges
Think 121 (2008).
Susceptibility to this bias blind spot
appears to be pervasive, and recent
research shows that it is not related
to people’s intelligence, cognitive ability, or personality traits related to selfesteem. But unless you are aware that
you are vulnerable to bias, you will not
be open to advice that could improve the
quality of your decisions. Unfortunately,
the research demonstrates that people
who think they are less biased than others are, in fact, less likely to learn from
training that would help them make
less biased judgments. Irene Scopelliti
et al., Bias Blind Spot: Structure, Mea-
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surement, and Consequences, 61 Mgmt.
Sci. 2468 (2015).
• Reason No. 2: Meritocracies are particularly vulnerable to implicit bias. Research
into this “paradox of meritocracy” has
demonstrated that emphasizing meritocracy as a cultural value can result
in less fair workplaces. People are more
likely to behave in biased ways in contexts in which they are led to feel that
they are unbiased, fair, or objective.
Accordingly, “[a]n organizational culture that prides itself on meritocracy
may encourage bias by convincing managers that they themselves are unbiased, which in turn may discourage
them from closely examining their own
behaviors for signs of prejudice.” Emilio
J. Castilla & Stephen Benard, The Paradox of Meritocracy in Organizations, 55
Admin. Sci. Q. 543, 567-68 (2010).
• Reason No. 3: Improving the feedback you
provide to junior lawyers is in your selfinterest. It can expand the pool of skills
and expertise on which you draw. And it
can help your bottom line. The current
legal market is characterized by hypercompetitiveness, 24/7 client-service demands, and pricing pressures that put a
premium on efficiency and productivity.
At the same time, associate costs have
skyrocketed for firms. The recent BigLaw
salary increases are but the tip of the iceberg; below the surface of the water are
the enormous direct and indirect costs for
recruiting associates and training them.
Furthermore, clients increasingly insist
on diverse staffing of their matters, and
both current and future business development requires a diverse talent pool.
Effective feedback (both formal and
informal) can directly improve associate performance and efficiency. It can
help team leaders and law firms realize
increasing value for junior attorney hours.
It also can enhance the upward trajectory
of experienced lawyers, including newer
partners. And it can reduce unwanted attrition and boost morale, because it demonstrates investment in our lawyers’ success
and provides better professional direction, including toward “good” or mutually
beneficial attrition. The much-maligned
millennials reportedly are motivated
by purpose, mission, and teamwork far
more than by financial bonuses, and they
value transparency and opportunities for
learning and professional growth.
• Reason No. 4: We just have to do something to improve diversity in our profession. Lawyers have been at the forefront
of desegregation and fights for gender equity. But we haven’t managed to
fully integrate our profession. It is still
the case that nearly 90 percent of lawyers are Caucasian. Law firms struggle particularly with retaining diverse
talent. And women still lag far behind
men in promotion to senior leadership
roles in law, including equity partnership in law firms. National Association
of Women Lawyers (NAWL), Report
of the Ninth Annual Survey (2015),
www.nawl.org/2015nawlsurvey (last visited
July 19, 2016); Anna Jaffe et al., White
Paper: Retaining & Advancing Women
in National Law Firms, Stanford Law
School Women in Law Policy Lab Practicum (May 2016), https://law.stanford.edu/
publications/retaining-and-advancing-womenin-national-law-firms/ (last visited July 19,
2016) [hereinafter “Stanford White
Paper”]; American Bar Association,
Lawyer Demographics 2015, http://www.
americanbar.org/content/dam/aba/administrative/market_research/lawyer-demographicstables-2015.authcheckdam.pdf (last visited
July 19, 2016); Jacqueline Bell, US Law
Firms Fail To Move Needle on Racial
Diversity, Law360 (May 15, 2016), http://
www.law360.com/articles/794900/us-lawfirms-fail-to-move-needle-on-racial-diversity
(last visited July 19, 2016).
The full range of obstacles to diversity
in legal practice is beyond the scope of this
article. The problems arguably start with
the educational pipeline (perhaps in preschool) and extend to deep-rooted structures in the legal workplace. Similarly,
this article cannot cover the full range of
the effects of implicit bias in the legal profession, which undoubtedly include interviewing and hiring practices, and work
assignments, and mentoring and sponsorship, and promotion, and compensation, and more. Our focus is on feedback.
And our modest proposal is this: Do what
you can. If you can guard against allowing implicit biases to affect your judgment, and then provide feedback across
differences to minimize the effects of stereotype threat and racial anxiety, you will
enhance the professional development of
the lawyers working with you. In your
own office and on your own teams, at
least, you can make a difference. You can
be part of the solution. And the first step
is to understand and accept that subconscious cognitive processes can influence
your workplace interactions.
Mental Shortcuts and Schemas
What are the underpinnings for subconscious cognition? We categorize the people,
things, and events around us automatically
because it helps us to cope with a constant
bombardment of sensory input—what we
see, hear, smell, feel, and taste. You don’t
and can’t consciously focus on each of these
inputs simultaneously. So how does your
brain organize this constant flow? It sets
aside the input that is not in the spotlight of
your attention. And it sorts and interprets
the inputs using “schemas.”
“Schemas” are mental structures that
we use to simplify and categorize information so we can respond to it quickly. They
let us place what we perceive into familiar categories, and then they prime us to
expect the characteristics that we associate with that category. Basically they tell us
what to expect from an experience or situation based on conscious and unconscious
associations. As such, schemas are building blocks of learning. Parents of small
children undoubtedly have helped them
develop schemas: Yes that large animal has
four legs but it is not a horse, it is a moose.
The preschooler refines her knowledge of
types of creatures, differentiating by attributes and applying labels.
Your brain can go on “automatic” when
using a schema. When you last sat down,
you probably didn’t pause to study the chair.
You instantly knew the object fit into the category “chair” and thereby understood its
function. And even in an unfamiliar conference room or restaurant, you typically will
recognize and sit in a chair, literally without giving it a thought. We have schemas
not only for objects but also for activities,
including fairly complicated learned processes such as reading or driving or riding
a bicycle. Typically once we learn a schema
of that sort we respond to it automatically.
We also have schemas for people. We
assign people into social categories divided
by their traits and roles, such as age, race,
gender, occupation, and relationship.
This categorization is involuntary: Male,
young, Asian, friendly, fit, physician—
all in a single glance. Think about a few
recent encounters with strangers in an airplane seat, a shared ride, or a queue. When
you engage with a new person, you may
aspire to treat him or her as a totally unique
human being unlike anyone you ever have
met. But before you engage (and, indeed, as
part of a decision whether or not to engage),
your brain has categorized the person and
created expectations about him or her.
Our brains are constantly using these
shortcuts, without our conscious control.
But the shortcuts do not always yield correct results, as Nobel Prize-­winning psychologist Daniel Kahneman has helped us
to understand.
Thinking Fast, Thinking Slow,
and Making Decisions
In his book Thinking, Fast and Slow (2011),
Kahneman explains that our brains are
governed by two clashing decision-­making
processes. The largely unconscious System
1, “fast thinking,” makes intuitive snap
judgments based on memory, emotion, and
assumptions. System 1 operates rapidly,
automatically, intuitively, involuntarily,
and effortlessly—as when we drive, or
interpret a facial expression, or read a word
that flashes before us. Kahneman demonstrates that the human brain is “a machine
for jumping to conclusions” driven by the
conservation of energy that System 1 permits. Kahneman at 79.
Kahneman’s System 2, by contrast, judges
and calculates, taking the outputs of System
1 and analyzing them further. System 2 requires conscious effort and involves slowing down, reasoning, considering data, and
focusing. System 2 demands attention and
energy. It can be impaired by fatigue, or alcohol, or multitasking. Kahneman presents
evidence that we are not at our best during
System 2 overload: “People who are cognitively busy are also more likely to make selfish choices, use sexist language, and make
superficial judgments in social situations.”
Kahneman at 41 (emphasis in original).
Thinking Too Fast
System 1 is vulnerable and even somewhat childlike. It is looking for shortcuts.
So it takes things it encounters at face
value, using processes that are designed for
speed rather than thoroughness, objectivity, or accuracy.
How do we block errors that originate in
System 1? Recognize the cognitive minefield, slow down, and call for reinforcements
from System 2. But that is easier said than
done. Examples of System 1 cognitive shortcuts that can bias decision-­making include:
Lawyers have been a t the
forefront of desegregation
and fights for gender equity.
But we haven’t managed to
fully integrate our profession.
Associative Coherence: We like patterns,
and we like stories that make sense of the
world around us. Trial lawyers know this
and take great care to craft coherent stories that explain the facts and lead to the
desired conclusion. We like to think that
we reach conclusions by reviewing facts,
weighing evidence, and applying the relevant rules. But when thinking fast, more
often than not we accept evidence and
arguments because they fit a pattern we
are building. We further look for patterns
even where they don’t exist, and we make
associations between events and circumstances that make the events “fit.” This can
lead us to assume intention or causality
where none exists.
Confirmation Bias: Confirmation bias is
a tendency to search for and rely on evidence that confirms our existing beliefs
about how the world looks, and to overlook
or discount ambiguities and counter examples. Those beliefs can be conscious. In an
election year examples of confirmation bias
abound, on Twitter and beyond, as people
focus on “facts” that confirm their opinions
and ignore the rest. But the beliefs also can
be unconscious, arising from the schemas
that lead us to expect that certain things
or people will have certain characteristics.
Confirmation bias is a bias in the selection of evidence. If you believe your preschooler is athletically gifted, you will note
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DIVERSITY AND INCLUSION
every leap or roll as an example of agility—
and probably overlook klutzy episodes.
When a supervising lawyer assumes, consciously or unconsciously, that an associate
working a reduced-hours schedule is not
fully committed to her career, he is more
likely to remember the times she declined
an assignment, or left early, or failed to
answer the phone (all of which confirm his
One damaging form
of anchoring takes place
when supervising lawyers
unconsciously calculate
the odds of someone
succeeding long term
and then allow that
“anchor” to influence their
perceptions of the lawyer’s
current performance.
assumption) than the times she took on
an extra project, stayed late, or responded
promptly to emails. Similarly, if you expect
a senior associate to write extremely well,
you may unwittingly overlook flaws in his
memo. And we’ve all seen plaintiff’s counsel who unwisely sticks to his early valuation of a case even when discovery has not
gone well for his theories. Confirmation
bias interferes with high-quality decisions
because it leads us to require a higher level
of evidence to prove things that we do not
want to be true (or that do not fit our subconscious schema) and apply a lower evidentiary standard for facts supporting our
opinion (or that fit our schema).
Worse yet, the more expertise we have
in a particular subject, the more susceptible we are to confirmation bias; we easily
become overconfident about the rightness
of our opinions. The risk of confirmation
bias increases even further when we regularly interact with a cohort of like-minded
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thinkers. And a high IQ does not inoculate
you against confirmation bias. Keith E. Stanovich et al., Myside Bias, Rational Thinking, and Intelligence, 22 Current Directions
in Psychol. Sci. 259 (2013). Indeed, smart
people can be particularly adept at rationalizing positions that were generated by
unconscious processes.
Halo Effect: Once we have made a judgment about a person, particularly about
likeability, we let our overall impression influence how we evaluate that person’s specific traits. In the workplace, a manager’s
positive reaction to a single characteristic
can cause that manager to overlook other
problems with an employee. Physical attractiveness alone can produce a halo effect. Research shows that attractive job applicants
are more likely to be rated as qualified and
even awarded better compensation. Marketers using brand strength and celebrity endorsements to sell products cash in on the
halo effect. On the flip side, a single negative encounter can taint subsequent positive interactions. In the workplace this sets
the stage for a “prove it again” syndrome, in
which we require someone to prove themselves repeatedly over a longer period before
we judge them to be as good as others are.
The halo effect is probably the most common bias in performance appraisal. Frank
W. Schneider, Jamie A. Gruman & Larry M.
Coutts, Applied Social Psychology 221 (2d
ed. 2012). And group discussions of performance can further polarize impressions.
Jerry K. Palmer & James M. Loveland, The
Influence of Group Discussion on Performance Judgments: Rating Accuracy, Contrast
Effects, and Halo, 142 J. Psychol. 117 (2008).
Anchoring and Priming: Another cognitive shortcut is particularly familiar to lawyers: People tend to rely too heavily on the
first piece of information available when
evaluating later information. For example, when we make numeric estimates, any
available initial figure “anchors” the estimation process, and we typically fail to adjust
sufficiently away from the anchor. Plaintiffs’
lawyers use anchors all the time when suggesting damages amounts; the high opening bid is intended to set the threshold for
settlement negotiations or the jury’s consideration of an award. Researchers have
demonstrated that judges are susceptible
to anchoring effects both high (from a high
settlement demand in failed negotiations)
and low (from a motion to dismiss for failure to meet the jurisdictional minimum).
Chris Guthrie et al., Blinking on the Bench:
How Judges Decide Cases, 93 Cornell L. Rev.
1, 19-21 (2007) (summarizing studies). And
retailers rely on anchoring to boost sales using discounts and coupons—don’t we all
feel great when the item we want on Amazon has a line through the “List Price” and a
lower number for the “Price” in red below it?
Similarly, in social contexts we allow
first impressions to influence subsequent
experiences. We usually aren’t even aware
that our thinking has been anchored. The
effect is especially unfair when the first
impression arises not even from conversation or someone’s work but from an unconscious or semi-­conscious stereotype. One
damaging form of anchoring takes place
when supervising lawyers unconsciously
calculate the odds of someone succeeding
long term and then allow that “anchor” to
influence their perceptions of the lawyer’s
current performance.
The Implicit Association Test
A major challenge in researching implicit
social cognition is that individuals cannot
self-report about their implicit attitudes
and stereotypes. So how can scientists collect relevant data? Cognitive and social psychologists have developed instruments to
measure cognitions that people are unwilling or unable to report. The most common
is the Implicit Association Test (the IAT),
which measures reaction times during a
computer task. The main idea behind the
IAT is that we can more quickly and easily
pair together two concepts that are associated together in our minds. Similarly,
incongruous pairings cause us to hesitate for a millisecond. An example is the
Stroop effect (named for the researcher
who described it): When the name of a
color (“red”) is printed in the “wrong”
color, it interferes with our reaction time.
The IAT measures the difference in the
time it takes to pair categories of things or
people (e.g., fat people and thin people) with
words reflecting attitudes or attributes (e.g.,
“enjoy,” “happy,” “sadness,” “poison”). At
one point during a series of tasks, the test
presents you with two columns, one headed
(for example) “fat people/good words” and
the other “thin people/bad words.” You are
then asked to sort a series of words into the
appropriate column as quickly as you can,
depending on whether a word is associated
with “fat” or “good” on the one hand or
“thin” or “bad” on the other hand. At another point, you undertake the same task,
but with the pairings switched (for example)
“fat people/bad words” and “thin people/
good words.” The test then measures the difference in the speed with which you sorted
words into the appropriate column on those
two tries. The difference reflects an implicit
attitude (in this example, whether you have
a slight, moderate, or strong automatic preference for fat people or thin people).
Project Implicit, a research website, permits volunteers to take IATs that examine
implicit attitudes and stereotypes on more
than a dozen topics, including race, disability, sexuality, skin tone, obesity, gender/career, and even presidential popularity. See
https://implicit.harvard.edu/implicit/selectatest.html
(last visited July 19, 2016). Millions of volunteers have taken the various IAT tests. Many
of our highly egalitarian friends have taken
it multiple times, attempting to change results that suggested their unconscious cognitive processes are inhabited by stereotypes.
So how do these milliseconds with fingers on computer keys matter in the real
world? It is tempting to view the IAT as
nothing more than an interesting video
game or “party trick.” But increasing evidence suggests that implicit biases, including as measured by the IAT, can
predict socially relevant behaviors. See
generally John T. Jost et al., The Existence of
Implicit Bias Is Beyond Reasonable Doubt:
A Refutation of Ideological and Methodological Objections and Executive Summary of Ten Studies that No Manager
Should Ignore, 29 Res. in Org. Behav. 39
(2009) (reviewing studies showing association between IAT results and hiring decisions, medical treatment, budget cuts, and
decisions to shoot someone who may pose
a threat), and Anthony G. Greenwald et
al., Understanding and Using the Implicit
Association Test: III. Meta-­Analysis of Predictive Validity, 97 J. Personality & Soc.
Psychol. 17 (2009) (finding statistically
significant correlations between implicit
bias scores and behaviors, and finding
that IAT scores were better predictors of
behavior than explicit self-reports regarding socially sensitive stereotyping such as
race and gender).
In-Group Favoritism
Implicit bias is not limited to negative stereotypes of certain groups. In fact, positive bias
toward one’s “ingroup” seems to be even
more pervasive. One recent review concluded that, at least in the United States, ingroup favoritism is the prime mechanism
of discrimination. Anthony G. Greenwald
& Thomas F. Pettigrew, With Malice Toward
None and Charity for Some: Ingroup Favoritism Enables Discrimination, 69 Am. Psychologist 669 (2014). And it is shockingly
easy to trigger ingroup bias: Neuroscience
research has shown merely assigning people to arbitrary groups generates affinity for
fellow members of the team and triggers related physical responses in the brain.
The bases for in-group favoritism are simple: Most people are highly motivated to focus attention on whatever will portray them
in the best possible light. As a result, we tend
to hold our own groups in particularly high
esteem. In legal departments and law firms
some ingroup membership may correlate
with attributes that are professionally valued, such as academic and clerkship credentials. We may assume that others in our
group will more reliably do first-class work
because that is how we like to believe we
perform. Senior lawyers are likely to invest
in “their” associates—the ones with whom
they work easily and who will make them
look good. Indeed, where law firms operate
as mini-fiefdoms, each partner who controls business typically can and does insist
on controlling which associates work on
that partner’s matters. “[W]ith increased
pressure to bill at the expense of mentoring
and training, partners will tend to prefer
and promote those associates they perceive,
correctly or incorrectly, to be more like them
and therefore more likely to learn faster.”
Eli Wald, BigLaw Identity Capital: Pink and
Blue, Black and White, 83 Fordham L. Rev.
2509, 2516 (2015) (emphasis added).
Even when people are aware of their ingroup preferences, they will not see them
as racist or discriminatory because they
do not involve hostility toward any particular group. But favoring one group can
have exactly the same effect as disfavoring
another group. When senior lawyers allocate plum assignments, mentoring, and
sponsorship to people just like them, they
effectively discriminate against those who
are different from them.
Implicit Bias in the Workplace
Implicit bias as the result of either negative stereotypes or in-group preference
can have profound effects in the workplace.
Most significantly, implicit biases can skew
how we evaluate merit.
Who would be a good hire? Discrimination
against various minorities in hiring has persisted. One study showed identical job appli-
In legal departments
and law firms some ingroup
membership may correlate
with attributes that are
professionally valued,
such as academic and
clerkship credentials.
cants with African American names were
50 percent less likely to receive job interviews than those with European American
names. Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable Than Lakisha and Jamal? A Field
Experiment on Labor Market Discrimination, 94 Am. Econ. Rev. 991 (2004). More
recent research has shown a correlation between implicit stereotyping as measured by
the IAT and discrimination in recruitment.
Dan-Olaf Rooth, Implicit Discrimination in
Hiring: Real World Evidence, IZA Discussion
Paper No. 2764, http://ftp.iza.org/dp2764.pdf (last
visited July 19, 2016) (implicit stereotypes of
Swedish employment recruiters regarding
Arab workers correlated with decreasing
likelihood of calling applicant with Arabic-­
sounding name for an interview).
A famous real-world demonstration of
stereotypes at work took place among orchestras. When symphony orchestras auditioned potential members, applicant
musicians typically auditioned in full view
of the decision makers. Blind auditions (behind a screen) were introduced in an attempt
to overcome bias in favor of the students of
certain well-known teachers. But the change
had another effect: It substantially increased
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DIVERSITY AND INCLUSION
the number of women hired by orchestras,
especially when they rolled out carpet to
muffle the sounds of shoes that could betray
the sex of the candidates. Claudia Goldin &
Cecilia Rouse, Orchestrating Impartiality:
The Impact of “Blind” Auditions on Female
Musicians, 90 Am. Econ. Rev. 715 (2000).
Who is a good litigator? UCLA Professor Jerry Kang and colleagues recruited
Racial anxiety also
can lead to a “kid gloves”
approach to reviews and
feedback. If we supervise
a member of a group that
suffers from damaging
stereotypes about their
professional abilities, we
may refrain from giving the
direct feedback that enables
that person to improve.
jury-eligible adults from the local community to participate in a study regarding the
performance of white and Asian American litigators. The study used IAT testing
to measure the strength of implicit associations between the ideal litigator and
racial groups as well as implicit racial attitudes toward Asians and whites. They also
measured participants’ explicit personal
and societal stereotypes—that is, how they
personally perceive the traits of whites and
Asians, and how they think Americans in
general perceive those traits. (For example, participants provided a rating on “How
ELOQUENT [charismatic, verbal, assertive, persuasive] do you think WHITE-­
AMERICAN [Asian-­American] litigators
are?”) Participants then evaluated the performance of two litigators in two depositions, listening to audio recordings and
following a transcript. The study manip-
86 For The Defense September 2016
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ulated the race of the litigator by changing the photograph and name; for a given
deposition, some participants thought it
had been conducted by a white litigator
and other participants thought the litigator was Asian.
Consistent with many other IAT studies, this study found that participants held
implicit attitudes in favor of whites. They
also held implicit stereotypes associating the “ideal litigator” with whiteness.
In fact, the more the participants had an
implicit stereotype of the “ideal litigator”
as white, the stronger their evaluations of
the white litigator: Looking at exactly the
same depositions, they scored the white
litigator as more competent and more likeable and reported they were more likely to
hire him and recommend that others hire
him. Strikingly, this finding held true even
after the researchers controlled for explicit
stereotyping. The study also found evidence of explicit bias in the participants’
self-reports, and a correlation between the
participants’ explicit stereotypes and lower
ratings for the Asian litigator. Jerry Kang et
al., Are Ideal Litigators White? Measuring
the Myth of Colorblindness, 7 J. Empirical
Leg. Stud. 886 (2010).
Who writes well? In a proof-of-concept
experiment, law firm partners from 22 different law firms were asked to evaluate a
research memo from a fictitious third-year
litigation associate as part of a study purportedly regarding writing skills of young
attorneys. Arin Reeves, Written in Black &
White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills, Nextions Yellow Paper Series (2014), http://www.
nextions.com/wp-content/files_mf/14468226472
014040114WritteninBlackandWhiteYPS.pdf (last
visited July 19, 2016). In this study, all partners received the same memo with the same
identifying information about the student
(name, alma mater, and seniority), but half
were told the author was African American
and the other half that the author was Caucasian. The creators of the memo had deliberately inserted more than twenty different
errors, including seven minor spelling/
grammar errors and additional substantive errors. The average overall rating for the
“white” associate’s memo was substantially
higher: 4.1 on a scale of 1 to 5, as opposed
to 3.2 for the “African American” associate.
Qualitative comments were consistently
more positive for the “white” associate (e.g.,
“good analytical skills”) than for the “African American” (“average at best,” “needs
lots of work”). More surprisingly, reviewers
found on average 2.9 (out of seven) spelling
and grammar errors in the “white” associate’s memo, in comparison to 5.8 in the
memo attributed to an African American.
So the reviewers not only judged the
“African American” memos more harshly
than the “white” ones, they found more
errors in them. How is that possible? The
answer lies in the phenomenon of confirmation bias that we described earlier:
We are more likely to “see” and remember
facts that confirm our expectations. And
this experiment provides further evidence
that supervising lawyers implicitly expect
African American lawyers to be subpar in
their writing skills compared to Caucasian counterparts.
Who is a “really” good lawyer? Implicit
bias can work in ways that are more subtle—and harder to spot—than directly
advantaging or disadvantaging a group.
In performance evaluations we can praise
people in ways that come easily to mind
because they fit our stereotypes of the
group’s strengths, but that are damaging
because the qualities we focus on are not
the critical ones. The classic example of
this is praising female attorneys for characteristics of interpersonal warmth (“great
team player”) or administrative competence (“keeps the trains running on time”)
when what really matters for advancement
is ratings in technical skills. See Monica
Biernat et al., The Language of Performance Evaluations: Gender-Based Shifts in
Content and Consistency of Judgment, 3
Soc. Psychol. & Personality Sci. 186 (2012).
Additionally, research shows that women
can be penalized for behaving in ways that
contradict the stereotype of their group
even when those behaviors are valued in
male lawyers. Stanford White Paper at
28 https://law.stanford.edu/publications/retainingand-advancing-women-in-national-law-firms/ (last
visited July 19, 2016) (women receive more
negative feedback about overly aggressive
communication styles than do men). See
generally Rachel Emma Silverman, Gender
Bias at Work Turns Up in Feedback, Wall
St. J. (Sept. 30, 2015), http://www.wsj.com/
articles/gender-bias-at-work-turns-up-in-feedback-1443600759 (last visited July 19, 2016).
It’s Not Just Implicit Bias
Implicit bias is not the only psychological process that interferes with giving (and
receiving) effective feedback.
Racial Anxiety: “Racial anxiety” is a general sense of unease about racial difference.
Many people feel a heightened level of stress
when interacting with people of other races.
(In the context of feedback, other differences can provoke similar anxiety, for example when a senior male lawyer is meeting
with a junior female associate.) White people can be anxious that if they inadvertently say something “wrong” they will be
assumed to be a racist. People of color can
be “on guard” because they are concerned
about being the target of distrust or hostility.
With all this anxiety in the air, interracial
encounters can be very awkward—which
then confirms the fears of both parties. Rachel D. Godsil, Breaking the Cycle: Implicit
Bias, Racial Anxiety, and Stereotype Threat,
24 Poverty & Race 1, 2 (2015) (describing
negative feedback loop from racial anxiety).
But racial anxiety can be more pernicious than merely making for an awkward
social encounter. Time is a precious resource, and lawyers count it in tenths of an
hour. Increased pressure to bill often comes
at the expense of mentoring and training in
law firms. And all of us know that it takes
far more time to analyze and critique a significant piece of writing (and, ideally, have
the author produce an improved draft) than
it does just to rewrite it. When racial anxiety
makes cross-group teaching and mentoring
even more demanding, many lawyers just
don’t take the time.
Racial anxiety also can lead to a “kid
gloves” approach to reviews and feedback.
If we supervise a member of a group that
suffers from damaging stereotypes about
their professional abilities, we may refrain
from giving the direct feedback that enables that person to improve. This may happen because we don’t want to be perceived
as biased. It may even be well-­intentioned
paternalism. But it also may happen because the stereotype leads to lowered expectations: Subconsciously, we’re prepared
to settle for good enough, rather than assuming the person can be just as good as
others are, given guidance and opportunities to stretch. See Rachel D. Godsil, Answering the Diversity Mandate: Overcoming
Implicit Bias and Racial Anxiety, N.J. Law.
(Feb. 2014) (failure to communicate constructive critical feedback to minority associates also creates racialized harm).
Stereotype Threat: “Stereotype threat”
occurs when a person is concerned that she
will confirm a negative stereotype about
her group. The anxiety about the stereotype divides the attention of the person
trying to perform; if she cares about how
her performance is evaluated, she will feel
an extra pressure. And this distraction
often has considerable negative impact
on performance.
Extensive research has demonstrated
that people’s fears of confirming a negative stereotype—that white athletes are
inferior, that women can’t do higher-level
math, that African Americans are intellectually inferior—causes stress that impairs
performance. In his seminal book Whistling Vivaldi: How Stereotypes Affect Us and
What We Can Do (2011), social psychologist
Claude Steele describes the role that stereotype threat plays in racial and gender
achievement gaps in multiple disciplines.
He provides a profound observation: Academic and intellectual performance is not
contingent solely upon actual ability. And
his research points to techniques that can
reduce or reverse the impact of stereotype
threat. Simply informing people about stereotype threat can help. Informing testtakers that intelligence is expandable can
help. Self-­affirmation can help. Even thinking about strong, positive role models can
help. And, as we will discuss later, so can
the way in which feedback is delivered.
Lawyers who are subject to societal stereotyping are aware that senior colleagues
may doubt their abilities. They are in the
classic stereotype threat predicament and
as a result may not perform to the best of
their abilities. Additionally, feedback in
this context may not have the desired effect.
Lawyers who attribute negative feedback to
racial bias rather than shortcomings in their
own performance will miss opportunities to
learn and improve. And this can lead to further self-­protective postures that can undermine a career, including shying away from
challenging work and/or telling themselves
they don’t really care about excelling in that
domain. See Geoffrey L. Cohen et al., The
Mentor’s Dilemma: Providing Critical Feedback Across the Racial Divide, 25 Personality & Soc. Psychol. Bull. 1302 (1999).
Nothing about stereotype threat suggests that lawyers who are susceptible to it
are more thin-skinned, less resilient, or less
ambitious than others. In fact, if they have
made it this far, the opposite is probably
true. Research demonstrates that underperformance due to stereotype threat-related
stress is most pronounced for those who really care about doing well in the stereotyped
domain. Just as the best-­intentioned among
us are still susceptible to unconscious biases,
so even the strongest are susceptible to the
effects of stereotype threat.
How All This Plays Out:
Feedback Scenarios
The following scenarios illustrate how
implicit bias, racial anxiety, and stereotype threat can manifest in a fairly routine
work interaction:
A senior partner is working with an African American summer associate. The summer associate prepares a memo on a relatively
narrow issue of state torts law. The partner
needs the summary to add to a comprehensive memo to a client covering multiple
issues and jurisdictions. The summer associate is late turning in the memo and sends
the draft with a cover email that contains
an error not caught by automatic spell check
(subject/verb agreement) and describes the
memo as a “rough draft.” The partner opens
the memo, glances at the topic sentences, and
in that 100-mile-an-hour skim has some difficulty following the analysis. The partner
then does one of the following:
Scenario A: The busy, stressed partner
makes a snap judgment that the summer associate’s work is sloppy and sends the draft
memo to a mid-level associate to re-do the
assignment with the direction, “Use what
you can but check everything.” The partner
provides no feedback directly to the summer associate. The partner provides a vague
but generally positive review of the summer
associate’s work to the summer committee.
At every quarterly partners’ meeting the
partner has heard firm leadership lecture
about the need to improve diversity at the
firm, so this partner is not going to be the
one who “dings” a diverse summer associate. But if this summer associate returns to
the firm as an associate, neither this partner nor the mid-level who was stuck re-doing the work are likely to want to work with
the younger lawyer.
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DIVERSITY AND INCLUSION
Scenario B: The busy, stressed partner sees that the summer associate could
use some counseling on cover emails and
handling deadlines. The partner also concludes that the summer associate’s draft
was acceptable and included the key cases
but could have been better organized and
presented. The partner turns to getting the
memo out to the client, using portions of
Feedbackand evaluations
are important. Where
implicit bias and stereotype
threat may be in play, you
should take extra time
with written evaluations.
the summer associate’s memo, and then
gives vague, generally positive feedback
to the summer associate in passing. After
being reminded three times by the summer
committee, the partner completes a vague,
generally positive evaluation. The partner
knows that it could help the summer associate to get feedback on the memo itself
and on the aspects of the summer associate’s communications regarding the project that made a negative impression on the
partner. But the partner is very, very busy.
The partner also hasn’t worked with many
diverse associates and worries that the
summer associate might feel singled out
or offended at getting negative feedback.
The partner would have to be extra careful about criticizing the associate, and the
conversation would likely be awkward. The
partner can’t think of anything the partner
has in common with the summer associate
other than this memo. The partner has to
leave town on a business trip and just can’t
work a non-­chargeable mentoring meeting
into the schedule before leaving. The partner reasons that the summer program is
almost over, and the summer associate will
get an offer but may not even return to the
firm; any return on investment seems distant for the partner, and the feedback session never happens.
88 For The Defense September 2016
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Scenario C: The partner reviews the
memo and selectively provides only positive feedback to the summer associate, including praising the summer associate for
covering legal points that the partner herself had directed the summer associate to
cover. At every quarterly partners’ meeting the partner has heard firm leadership emphasize the firm’s commitment to
diversity and the need to attract and retain
diverse talent, and the partner wants to
do everything possible to encourage this
diverse summer associate to return as an
associate. The partner shares with the summer associate a copy of the final memo sent
to the client, assuming that the summer
associate will find the section addressing
the issue on which the summer associate
worked, compare the final to the summer
associate’s draft, and learn from the extensive revision and reorganization the partner and her team did to that section.
Scenario D: The partner takes the time to
review the memo, evaluate its strengths and
weaknesses, pick three or four key points on
which to provide feedback, meet with the
summer associate, and have the summer
associate prepare a revised version with the
shared and explicit goal that it be ready to insert into the larger memo for the client with
minimal editing. During in-person meetings to discuss the memo, the partner also
reminds the summer associate to proofread
emails because emails make an impression,
especially when the recipient doesn’t know
the writer well, and because even small mistakes may be judged harshly in a law firm
context. The partner further counsels the
summer associate never to submit a “draft”
and never to assume that someone else will
revise the work but rather to strive to submit all written work “client-ready.” While
taking care not to condescend, the partner
conveys that both the partner and the firm
fully expect the summer associate can and
will produce timely and excellent work. The
partner couches all of this in the context of
the learning curve that all new lawyers face
and that the partner herself faced as a summer associate. The underlying message is
that the partner and summer associate are
at different developmental points but they
both inhabit the same world—rather than
implying that the partner and others like her
were born perfect while the summer associate apparently is deficient.
While we expect every lawyer who
supervises other lawyers strives to get
closer to Scenario D, we also expect many
readers to recognize familiar elements in
the first three scenarios.
From the perspective of the diverse summer associate, each of the feedback scenarios
presents a risk. Under Scenarios A, B, and
C the summer associate has no meaningful
opportunity to improve. The summer associate is likely to feel either overconfident
(because the only feedback provided was
positive) or ignored (because the feedback
was vague) or devalued (because the feedback was condescending and perceptibly insincere) or all of the above. Under Scenario
D, there is a risk that the summer associate
will attribute the negative feedback to racial
bias and will discount or dismiss valuable
criticism. But the partner has taken pains to
invoke high standards, to provide reassurance that the summer associate is capable of
reaching the higher standard, and to emphasize that all summer associates face a steep
learning curve. This approach matches what
research has shown to be the optimal “wise”
approach to mentoring across differences
and in the face of stereotypes. See generally
Geoffrey L. Cohen et al., supra, at 1315–16.
What Can You Do About It?
The following are our tips for delivering
feedback in a way that reduces implicit
bias, disarms stereotype threat, and mitigates racial anxiety.
The Principle
• Recognize that we all harbor implicit
biases. We won’t be motivated to interrupt our biases if we are sure we are
bias-free to begin with. Unless we bring
the patterns of bias to consciousness,
and try to interrupt them, our autopilot
sense of “the way things are” will continue to inform our workplace interactions. However, when decision makers
are aware of a need to monitor for the
influence of implicit racial bias and are
motivated to suppress that bias, they
appear able to do so, even when their
measured level of implicit bias is high.
See generally Rachlinski, et al., supra.
The Practical
• Slow down. Don’t trust your first judgments, and don’t generalize quickly
from limited evidence. Take time to consciously engage your System 2 deliberation. Clear your mind (and your desk)
and focus. Feedback and evaluations are
important. Where implicit bias and stereotype threat may be in play, you should
take extra time with written evaluations.
Don’t fall into the trap of trying to finish
your evaluation forms under deadline.
Likewise, take time to think through
what you will say and how you will say it
before you deliver in-person feedback.
• Provide contemporaneous feedback
whenever possible. Millennials grew up
with the Internet, which offers instant
responsiveness, and they expect that in
other aspects of their lives. Moreover, silence can be misinterpreted, especially by
those who may not be confident of their
place in a firm. And difficult feedback
doesn’t get easier to deliver as it gets stale.
Keep notes in anticipation of periodic formal reviews, so that you are not forced to
rely solely on memory and generalized
impressions months later. And make time
for project de-briefs and other in-person
meetings—don’t limit your feedback to
the infrequent, formal evaluation system.
• Make the criteria you are applying
explicit, both to yourself and the other
person. Don’t focus only on deficiencies without clarifying or demonstrating what “success” looks like and why it
matters (e.g., “For this type of memo, we
have to set forth every link in the logic,
even if it seems obvious, because otherwise a speed reader may lose the thread
or find reasons to disagree.”).
• Then be concrete. Think through specific
instances of performance. To avoid possible halo effect, drill down to the skill
sets required for each area of performance and then address how the lawyer
used those skill sets in tangible contributions or specific behaviors. Avoid thinking about or describing an attorney’s
underlying competence or character in
general terms (“careless,” “disorganized,”
“thin analysis”) and instead note specific
behaviors that can be corrected (“failed
to proofread,” “missed three deadlines,”
“did not consider potential extension of
a related doctrine to this case”).
• Be consistent. Commit to the criteria
that will apply across your entire team
before reviewing individuals. Articu-
•
•
•
•
late your reasoning for each individual
ranking, and then review your rankings and narratives across your team.
Mentally attach the performance you
have described for one person to someone else—this may seem very artificial,
but it can help break any unconscious
link between performance and categories that should not be relevant to your
review (race, gender, etc.). Watch for
language that might reinforce or reflect
stereotypes about a group’s strengths
(“she is doing very well for someone just
back from maternity leave”).
Focus on suggesting next steps, both corrective actions and development opportunities. Spend more time in the future
than in the past—next steps that you
suggest, and next steps the other lawyer would like to take (types of work, direction for research, etc.). In this regard,
consider how you can distribute work assignments to maximize the professional
development of this lawyer and everyone on your team. If you have wide discretion in staffing projects, don’t rely only
on a short list of your go-to peeps. Discipline yourself to consider every qualified
junior lawyer for new opportunities.
Adopt a “growth mindset” and express
it while providing feedback. Lawyering involves skills that can be learned
and enhanced through practice. Convey
the message that legal ability, including
analytical ability, is not fixed—it can be
expanded, with hard work and guidance. Affirm your confidence in the person’s abilities and/or ability to improve.
Pause for questions. And ask questions,
both about the matter being evaluated
(“How does that compare with your
sense of the assignment?”) and to learn
more about the individual (“What work
have you enjoyed the most?”).
Try to relax. Body language matters in
formal review sessions and even more
during informal mentoring, feedback,
and collaboration. If one person acts
awkwardly, the other person tends to
reciprocate. This generates a vicious circle of discomfort. Facial expressions,
eye contact, and body posture all communicate as much or more than your
words. Take a deep breath and unwind,
even just for a second. Where possible,
choose an informal setting that encour-
ages conversation—over coffee, or even
just in chairs next to each other rather
than across a desk.
The Purposeful
• Identify and keep in mind the unique
attributes of individuals in minority
groups. Get to know your colleagues well
enough that they are individuals to you.
Many organizations
are moving to collect
metrics regarding implicit
bias in their formal
review processes. Even
if that hasn’t happened
yet in your workplace,
pretend that it has.
If you are at risk of confusing the names
of two lawyers from the same minority group, you don’t know them well
enough, and that is on you.
• Act as if someone is watching. Many
organizations are moving to collect metrics regarding implicit bias in their formal review processes. Even if that hasn’t
happened yet in your workplace, pretend
that it has. The risk of being observed
as behaving in a biased way has been
shown to be an effective motivator to
counteract the effects of implicit bias.
• Be a bit humble. Research shows that all
of us, including lawyers and judges, are
overconfident about our ability to avoid
the influence of race and gender. If we
think we’re doing a pretty good job being fair, we will fail to check and correct ourselves.
• No, really. Be a bit humble. We lawyers
are subject matter experts, and we can
be harsh and impatient critics of developing lawyers. But the best mantra for
providing respectful, constructive feedback is to say for each project: “This is the
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ble of excellence. How can I help?” This
applies generally but is particularly valuable when providing feedback across differences. And, every now and then, be
open to a new perspective. Even if you are
the smartest and most experienced lawyer in the room, someone very different
from you may occasionally have a good
idea that just didn’t occur to you.
• Consider the goal, and put down the
knives. Litigators are trained to pounce
on an opponent’s weakness. But giving feedback is about building up the
junior lawyers’ strengths, both where
they are weak and where, although
their performance is just fine, they have
untapped potential. Far too many lawyers bring their keen, incisive analysis to
bear in reviewing another’s work—and
expect a reward for spotting every problem and issue. Providing good feedback
is not about how thorough and smart
you are but how much you can help
another lawyer improve. Remember that
we all have learned by making mistakes.
• Avoid empty flattery. The traditional feedback sandwich (compliment, critique,
compliment) is generally confusing and
ineffective. Positive feedback should not
be needlessly flattering, and negative
feedback should not be unnecessarily
detrimental. Either extreme will provoke
questions regarding whether the feedback is an honest evaluation of the work
or a result of some stereotype or of racial
anxiety. Instead, make the positive feedback specific enough to be credible, and
frame the negative in terms of next steps
rather than rehashing the problems.
• Watch out for groupthink. It of course is
valuable for colleagues to confer about the
professional development of young lawyers. But beware that your knowledge of
another lawyer’s experience with an associate can trigger for you implicit biases
including confirmation bias, halo effect,
and anchoring. When you hear of an early
misstep keep in mind that junior lawyers
can and do improve.
The Proactive
• Look for opportunities to provide feedback that is developmental, even when
there are no problems to address.
Describe the next steps in someone’s
development—and then help him take
90 For The Defense September 2016
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those steps, by giving him challenging
work and increasing responsibility as
well as advice.
• Invite diverse lawyers to business development or training opportunities in recognition of their high potential and as
an indication of the organization’s confidence in them. Avoid any implication
that such programs are remedial. And if
you create mentoring or other programs
for minority lawyers, involve them in deciding the program’s structure and title.
• Look for and find commonalities with
people who appear different from you.
This makes your brain recategorize them
and creates a more level playing field. Social bonds and attraction can form on the
basis of seemingly minor characteristics.
Purposefully expand your “in group.”
• Attend and host activities (lunch-andlearn, fireside chat) to expose yourself
and your colleagues to female and diverse leaders. Increasing contact with
counter-­stereotypic role models can reduce implicit biases and ease racial anxiety. Such events also can serve as practice
development or training opportunities.
Make the Most of Your
Colleagues’ Talents
Lawyers who serve as employers, mentors,
teachers, and supervisors to other lawyers
must recognize that unconscious processes
may be getting in the way of maximizing
legal talent. If we interrupt implicit bias,
disarm stereotype threat, and take steps to
reduce our own anxieties about working
with people who are different from us, we
will be better able to integrate diverse individuals into high-­performing teams. We
must try to do so, for the sake of our teams,
our colleagues, and the profession.
Additional Resources
The ABA Section of Litigation has developed a Toolbox for exploring implicit bias:
• http://www.americanbar.org /groups /litigation/initiatives /task-force-implicit-bias /
implicit-bias-toolbox.html (last visited July 19, 2016).
• The National Center for State Courts has assembled resources on implicit bias:
http://www.ncsc.org/ibeducation (last visited July 19, 2016).
• Project Implicit (where you can take as many IAT tests as you’d like): https://
implicit.harvard.edu/implicit/ (last visited July 19, 2016).
• The Minority Corporate Counsel Association (MCCA) recently conducted
a Bias Interrupters Survey (2016) and offers demographics reports and
additional diversity resources: http://www.mcca.com/index.cfm?fuseaction=Page.
ViewPage&pageId=2548 (last visited July 19, 2016).
Recommended Reading/Listening
• Daniel Kahneman, Thinking, Fast and Slow (2013).
• Mahzarin R. Banaji and Anthony G. Greenwald, Blindspot: Hidden Biases of
Good People (2103).
• Claude M. Steele, Whistling Vivaldi: How Stereotypes Affect Us and What We
Can Do (2011).
• Shankar Vedantam, The Hidden Brain: How Our Unconscious Minds Elect
Presidents, Control Markets, Wage Wars, and Save Our Lives (2010).
• Geoffrey L. Cohen, Claude M. Steele, and Lee D. Ross, The Mentor’s Dilemma:
Providing Critical Feedback Across the Racial Divide, 25 Personality & Soc.
Psychol. Bull. 1302 (1999).
• Arin Reeves, Written in Black & White: Exploring Confirmation Bias in
Racialized Perceptions of Writing Skills, Nextions Yellow Paper Series (2014),
http://www.nextions.com/wp-content/files_mf/14468226472014040114WritteninBlackand
WhiteYPS.pdf (last visited July 19, 2016).
• Hidden Brain Podcast “An Ace Up the Poker Star’s Sleeve: The Surprising
Upside of Stereotypes,” http://www.npr.org/2015/10/06/444213368/an-ace-up-thepoker-stars-sleeve-the-surprising-upside-of-stereotypes (last visited July19, 2016).