To Retain Minority Talent, Combat Implicit Biases

EQUITY COMMITTEE SPOTLIGHT

BY DAVID HOLMES

R ecent times have seen an increased emphasis on finding ways to improve racial and ethnic diversity in the legal profession, and in the wake of the protests of last summer, many law firms spoke out on the importance of diversity and made commitments to improve. However, minorities remain underrepresented in most law firms, due in large part to an inability to retain minority lawyers. According to a recent joint study by the National Association for Law Placement Foundation and Major, Lindsey & Africa, minority lawyers are voluntarily leaving their firms at higher rates than their white counterparts. 1 Not only are these lawyers leaving their firms at higher rates than white associates, but their departures are also more likely to be characterized by their former employer as a “desirable” loss, indicating an increased failure to mesh between firm and associate. Minority attrition is greater at larger firms (500+ attorneys), and the gap between minority departures and non-minority departures starts out close in the first year but subsequently widens year to year. In most cases, this increased attrition is likely related to workplace environments that are less welcoming to minority associates. Regardless of any intentional actions a firm might take in the name of improving diversity, the continued effects of unconscious biases remain a huge hurdle in improving those environments.

Often, these biases operate at the subconscious level without us ever actually being aware that we are being affected by these thoughts. Accordingly, it’s easy to see how such biases can operate to create a workplace that is less inclusive of minority attorneys in spite of legitimate efforts on behalf of a firm.

Unconscious or implicit bias can be defined as “the process of associating stereotypes or attitudes toward categories of people without our conscious awareness.” 2 These biases can lead us to differentiate in our actions towards and evaluations of others. We can suffer from both “affinity bias,” when pre-existing beliefs about a group’s positive attributes lead one to notice those attributes in members of that group, and “confirmation bias,” when pre-existing beliefs about negative attributes make you more likely to notice those negative traits in members of a group. Everyone holds implicit biases—they are shaped and developed over the course of your lifetime from very early on and can be influenced by everything from your family and friends to movies, music, books, and other aspects of culture. Often, these biases operate at the subconscious level without us ever actually being aware that we are being affected by these thoughts. Accordingly, it’s easy to see how such biases can operate to create a workplace that is less inclusive of minority attorneys in spite of legitimate efforts on behalf of a firm. This is why it is incumbent upon each individual attorney to evaluate their own implicit biases in hopes of understanding how their pre-held beliefs might be affecting those in the workplace around them. With that in mind, here are three steps you can take to combat implicit bias.

STEP 1: ACKNOWLEDGE BIAS

The first step is the simplest: Admit biases exist, and that you have them. And that’s ok— everyone has them! Given the wide variation in racial diversity across America (even just from neighborhood to neighborhood), as well as the prevalence of racial stereotypes portrayed in various forms of media and pop culture, the formation of implicit racial biases is understandable and perhaps expected. It does no one—including yourself—any good to pretend biases don’t exist. We can’t combat a problem that we can’t admit is a problem.

STEP 2: ACT WITH AWARENESS

Once we’ve acknowledged our biases, the next step is to act with awareness of that bias. This requires actively questioning ourselves and our responses when engaging with those from groups different from our own. Ask yourself some of these questions:

“Did I assume that person’s intentions?”

“Did I act differently from the last time I was in a similar situation? If so, why?”

“Am I possibly missing information that might be relevant to understanding what is happening?”

“Am I making decisions based on assumptions I am not certain of?”

STEP 3: LISTEN & ADJUST

Well-meaning attorneys may dutifully take to steps 1 and 2 and still feel as though they aren’t seeing positive results. However, when it comes to inclusivity, remember that there is no silver bullet for knowing how to engage with and respond to people from any particular group. No racial group is a monolith, and what is welcoming for one member may not serve the same benefit for another. Be attentive to how your interactions are perceived and adjust your practices as needed.

Increased retention of minority lawyers has a snowball effect, making workplaces that are more diverse and welcoming to other minority lawyers over time. If every attorney takes it upon himself or herself to actively combat implicit biases, we can improve our profession one incremental understanding at a time. AL

Footnotes

1. https://www.law.com/ americanlawyer/2020/09/30/ starved-of-professionaldevelopment-minority-associatesare-fleeing-big-firms-report-finds/

2. https://www.americanbar.org/ groups/diversity/disabilityrights/ resources/implicit_bias/.

David Holmes is an associate at Walsh Gallegos Treviño Russo & Kyle, where he practices school law. He is a member of the Austin Black Lawyers Association and the Austin Bar Association’s Equity Committee.