Understanding unconscious bias in the workplace – By Kym Lawrence

UNDERSTANDING UNCONSCIOUS BIAS IN THE WORKPLACE

KYM LAWRENCE, WOMEN LAWYERS ASSOCIATION (SA)

Since taking on the role of President of the Women Lawyers’ Association of South Australia (WLASA), one thing has become abundantly clear to me after speaking to various members of the profession - the legal profession in South Australia remains starkly segregated from a gender perspective.

The recent revelations about former High Court Justice Dyson Heydon have, again, laid bare the currents swirling beneath the public face of the Australian legal system – a system dominated by men, in which women often struggle for equality. The statistics support this reality. In 2019, the Workplace Gender Equality Agency reported that the legal profession had a gender pay gap of over 25%. Barristers have the highest pay gap of any occupation. In 2017/2018, the average income for female barristers was $70,227 and for males it was $190,454 - for female lawyers it was $112,731 and for males it was $148,4871. In 2019, women made up only 25% of partners and 10% of the most senior positions.

Many female lawyers have reason to ponder the frustrating inequities that still permeate the profession. While there is no doubt that some inroads have been made to addressing this direct and indirect gender discrimination, our profession continues to be plagued by issues arising from unconscious bias, sexual harassment, the gender pay gap and the attrition rates of female practitioners, to name a few.

These practices are harmful to selfesteem and morale and too often result in women leaving the profession altogether. More needs to be done to shift the cultures and practices that limit women’s opportunities for career advancement and access to leadership roles.

Although there are some real barriers that we must overcome, I believe that, in partnership as a profession, great strides can be made to resolve these issues once and for all.

The WLASA has been working on a number of initiatives to address these issues. We believe that the WLASA’s ‘Charter for the Advancement of Women in the Legal Profession’ (the Charter) is one of the initiatives that has a key role to play in eradicating these barriers.

WHAT IS THE CHARTER?

The purpose of the Charter is to ensure that female lawyers in the South Australian legal industry are afforded the same opportunities in their careers as their male counterparts.

Despite the fact that women make up 50% of the legal profession, there remain obvious barriers to their progression within the industry. The Charter aims to eradicate those barriers by generating genuine structural and cultural change across the legal workforce and providing meaningful action to redress sexism and gender inequity across the profession.

Our attention needs to shift to solving the problem itself – the attitudes, cultural norms and systemic manifestations of sexism and gender inequality that disadvantage and harm women.

Signatories to the Charter are committing to ensuring that female lawyers within their organisations are provided with equal opportunity and inclusive workplace cultures. This will, in turn, favourably impact on all members of the organisation, and, by extension, have a positive impact on the South Australian legal profession as a whole.

The practical ways in which the Charter will be implemented by its Signatories are as follows:1. Demonstrating leadership by implementing diversity and inclusion principles and removing gender bias,

unconscious bias and discrimination in the legal workplace; 2. Driving change by developing a culture that supports the retention of women legal practitioners and recognises their value in senior roles; 3. Implementing recruitment and promotion strategies that include gender diversity as an important consideration, including ensuring equal pay for legal graduates regardless of gender; 4. Promoting and supporting mentoring and sponsorship of women; 5. Encouraging and supporting flexible work practices to assist men and women to better balance professional and other commitments; 6. Adhering to and implementing equitable briefing policies as per the

Guidelines of the Equitable Briefing

Policy of the Law Council of Australia.

Signatories agree to implement these strategies within 24 months of signing the Charter.

Although these strategies are designed to combat a number of examples of direct and indirect discrimination that are prevalent within our profession, I have set out my thoughts below on one of the key issues that requires specific attention – unconscious bias.

UNCONSCIOUS BIAS

Anti-discrimination laws have made overt declarations in favour of male employees unlawful. Consequently, leaders, recruiters and managers guard their language carefully and the real reasons and motivations for denying opportunities to women are often camouflaged. However, archaic, inaccurate beliefs still persist and include notions such as - men are more competent than women, women are not as ambitious as men or that women tend

to shrink from leadership responsibilities as they are instinctively more ‘caring’ and ‘nurturing’. These attitudes continue to prevail in unspoken form.

When group members collectively hold and maintain similar biases, they become systemic. Systemic bias is the tendency for a human system or institution to prefer a particular outcome. Consequently, what appears like an objective standard actually favours one group over another.

The Law Council’s National Attrition and Re-engagement Study (NARS) Report identified a number of features in the practice of law which can be classified as systemic bias against women. These include - flexible work having a negative impact on progression, a lack of women in leadership roles which is contributing to a male-dominated culture, discrimination due to family responsibilities and the allocation of ‘softer’ areas of work to women.

Unconscious bias is one of the key inhibitors of diverse and inclusive workplace cultures. It impacts how every individual experiences the workplace and affects who gets hired, promoted, and developed. The NARS Report identified the severe consequences unconscious bias can have for the inclusion and retention of women and the role it plays in undermining the success of other policies and initiatives designed to increase diversity and inclusion.

Even those who carry the best of intentions and who are firmly committed to fair and equal treatment of others, can be guilty of unconscious stereotyping and displaying prejudicial behaviour.

Although unconscious bias cannot necessarily be eliminated entirely, its impact can be mitigated if every aspect of the employment life cycle is reviewed and re-designed to identify and then overcome hidden bias.

In order to counteract the impacts of unconscious bias, it is incumbent on firms to empower staff and leaders, at all levels of seniority, to recognise bias and create an open culture.

So how do we combat unconscious bias from an organisational perspective?

There are two key steps in this process. Firstly, unconscious bias training must be offered by firms to educate key decision makers and staff about unconscious bias and its impacts. Secondly, firms must redesign systems and processes to detect and mitigate the impact of bias within their organisations.

Training

To mitigate unconscious bias, people must first be made aware of their decisionmaking preferences before systems and processes are introduced to help hold them accountable to change their behaviour.

Law firms must focus on making their unconscious bias training as effective as possible. This can be achieved in the following ways: Get the tone right – In order to be as engaging as possible and to motivate individual behavioural change, the key message that must be emphasised during the training is that bias is natural, normal and forms part of everyone’s judgements. Face to face delivery – Unconscious bias training is most engaging when it is delivered face to face and draws upon real-life examples and situations that the audience will understand and relate to.

Follow up training – It is imperative that action points are set during the training session, and introductory training is followed up to encourage a culture where individuals are motivated to change their behaviour and are adequately equipped and willing to recognise non-inclusive behaviour.

The bottom is just important as the top – Ideally, organisations will provide all staff with training alongside that delivered to senior decision makers. This is to further raise awareness of unconscious bias and to provide staff with the knowledge as to how to effectively challenge any exclusive behaviour they witness. Link it to other initiatives and people processes – Unconscious bias training should be linked to corresponding initiatives and policies focused on mitigating bias in the workplace.

Redesign systems and processes

Although education and training builds awareness, it is not necessarily enough, on its own, to change individual and/or organisational behaviour.

After leaders and staff members are made aware of their biases, the onus is then on firms to undertake an analysis of their recruitment, assessment, work delegation, promotion and renumeration processes against the lens of unconscious bias and consider the ways in which those processes can be re-designed to reduce the effects of unconscious bias.

One of the practical ways firms can tackle this issue is though the creation of a bias interrupter ‘cheat sheet’ for use by members of promotion/renumeration committees/assessors during the annual performance review process. This reference tool could include priming statements to remind assessors to slow down their decision-making processes and to watch for typical forms of cognitive bias.

A diversity champion could also be appointed within a firm to oversee such processes to flag any issues that arise that may be cause for concern from a diversity perspective.

The Charter provides Signatories with a number of other recruitment and promotion strategies that include gender diversity as an important consideration thereby combating the impacts of unconscious bias.

HOW CAN FIRMS BECOME CHARTER SIGNATORIES?

Counteracting unconscious bias and other barriers to the advancement of women in the legal profession takes time. However, it is a commercial imperative for law firms to address these barriers as part of their diversity and inclusion efforts and to invest in strategies to eradicate these hurdles. This needs to be part of a multidisciplinary approach to diversity and inclusion, measurable over a meaningful period of time, if law firms are going to be effective in addressing these issues.

A proactive and responsive workplace is crucial to the retention and advancement of women in legal practice. The Charter is a major step towards this goal and I strongly encourage senior decision makers and partners to embrace the Charter and the assistance it provides.

Further details regarding the Charter and how to become a Signatory can be found on the WLASA website www.

womenlawyerssa.org.au.

We very much look forward to your engagement and support on this incredibly important initiative for our profession. B