This site—and plenty of others—have a depressing amount of posts about the lack of diversity in the legal profession regarding both women and people of color. BigLaw is bad. The state courts are bad. Worst of all, as a profession, we just don’t seem to want to talk about it at all, or we make excuses for our behavior because we don’t think of ourselves as biased.
It’s the last part that is so pernicious, and so difficult to root out. Diversity isn’t always hampered by blatant racism or sexism (although let’s not kid ourselves—outright discrimination is a problem too). Instead, it’s that we have embedded biases we simply are not aware of.
For example, to believe women are confident, we expect them to be warm.
A recent study of engineers working at a large multinational software firm asked coworkers—bosses, colleagues, and subordinates—to rate the confidence of their female co-workers. As part of that study, the researchers looked at two universal ways in which we judge people: competence and warmth. They argued that those traits would underpin how people perceive that others are confident. What they found was predictable and disheartening.
[M]en are seen as confident if they are seen as competent, but women are seen as confident only if they come across as both competent and warm. Women must be seen as warm in order to capitalize on their competence and be seen as confident and influential at work; competent men are seen as confident and influential whether they are warm or not.
It’s doubtful that the people in the study were aware of their belief that women needed to be warm. In fact, I’d wager that most people in the study firmly believed they evaluated both men and women under the same standards. But we don’t. This bias even shows up in performance reviews, where reviews for women contain “nearly twice as much language about being warm, empathetic, helpful, and dedicated to others.”
We have implicit biases about women (and people of color, and LGBT people, and people with disabilities, and … ) and their abilities and characteristics. Because of that, we tend to put an additional burden on women in the workplace: we think women should be warm, so when they’re not we feel like they are not living up to our expectations. That must mean they are not very confident, which must mean they’re not very good at their job.
You can’t make biases disappear magically, but making yourself aware of them is a good way to take the very first steps to solving the problem.1
Project Implicit, which is housed at Harvard, has developed a number of tests to quantify your implicit biases. There are tests for implicit biases related to gender, age, race, weight, religion, disability, and sexuality. The tests measure how you associate certain traits, positive and negative, with certain people. The gender bias test, in particular, will show you if you tend to associate women with motherly familial traits and men with work-related traits.
A warning: people tend to get really uncomfortable when the test says they have a bias. Because of that, be careful in determining whether you should demand that other people take the test.
What does it mean if you do have an implicit bias? It’s not clear if you can actually eliminate your implicit biases. You can, however, put yourself in situations where you reduce or remove the possibility of exercising those biases.
[W]e encourage people not to focus on strategies for reducing bias, but to focus instead on strategies that deny implicit biases the chance to operate. One such strategy is ensuring that implicit biases don’t leak out in the first place. To do that, you can “blind” yourself from learning a person’s gender, race, etc. when you’re making a decision about them (e.g., having their name removed from the top of a resume). If you only evaluate a person on the things that matter for a decision, then you can’t be swayed by demographic factors.
Blind resume evaluation is a good start, but sometimes that still doesn’t entirely correct for our biases about privilege, which often correlates to white men who have had access to better opportunities.
Completely blind to the realities of structural inequalities, just stripping off the names continues to privilege the privileged. Well, this person went to Harvard, and I don’t care what gender or race they are. As if there aren’t inequalities in who gets that opportunity.
How do you help yourself avoid those sorts of biases? Consider removing the name of the law school name on a resume you’re evaluating. Does it actually matter where someone went to school if they have a solid work record? Reach out to specific affinity groups in your state, like the association of black lawyers or women lawyers for possible job candidates rather than relying upon your usual network of contacts. Moving out of your comfort zone and network both challenges your implicit biases and creates opportunities for you to work with people you might not otherwise encounter.
And for crying out loud, we all need to work on realizing that women can be as competent and confident as men, regardless of whether they’re “warm” or not.
This is beyond the scope of this piece, but the legal profession also struggles with implicit bias, especially racial bias, in the court system. ↩