Good Intentions and Rhetoric Won’t Suffice

Why is it so hard for the legal profession to act on what we know about the benefits of working in an environment that reflects the diversity of those we provide services to?

As a member of numerous volunteer committees, both inside and outside the legal profession, I’m often struck by the extent to which diversity challenges pervade most every sector. In the social and community services sector where I work and volunteer, I often find myself involved in committees made up largely of women and often failing to reflect the diversity of the service users in that sector. In legal circles, it is far more likely that I’ll find myself among a majority of privileged, often older white men.

These issues have been circling round in my head, and so it was with great interest that I noted Osgoode Dean Lorne Sossin’s recent tweet announcing publication of a paper he wrote with Sabrina Lyon, Data and Diversity In the Canadian Justice Community. Sossin and Lyon, in the paper, describe the ongoing failure of the legal profession to reflect the faces of those it serves as “a mischief that cannot be ignored.” Ultimately, they recommend addressing the gap through collection and dissemination of quality data that forms the evidentiary base for development of “responsive and effective policies.”

I agree that data collection is a necessary starting point and that once gathered, can inform policy development. Without good data, as Sossin and Lyon warn, policies are mostly developed in the dark and may not be effective.

But even with a foundation of good data, what’s the point of having “responsive and effective policies” if no one acts on them, consistently, persistently and especially when it’s inconvenient to do so?

In a recent post on Precedent, Daniel Fish asks: Why is diversity so hard to achieve? One answer is that many lawyers hold the belief that they are, by virtue of their profession, “objective and fair….They falsely think they are immune from holding prejudicial views. Too many lawyers, as a result, unknowingly favour people of the same gender and cultural background.”

This results in what is known as “affinity bias.” Affinity bias is described in a 2003 Harvard Business Review article, How (Un)ethical Are You? by Mahzarin R. Banaji, Max H. Bazerman and Dolly Chugh, as an “in-group favoritism” that each of us is unconsciously susceptible to engage in. We tend to favour those who are most like us and in doing so, disfavour those who are not. They note that:

…when those in the majority or those in power allocate scarce resources (such as jobs, promotions, and mortgages) to people just like them, they effectively discriminate against those who are different from them. Such “in-group favoritism” amounts to giving extra credit for group membership. Yet while discriminating against those who are different is considered unethical, helping people close to us is often viewed favorably.

In-group favoritism is tenacious when membership confers clear advantages, as it does, for instance, among whites and other dominant social groups. (It may be weaker or absent among people whose group membership offers little societal advantage.) Thus for a wide array of managerial tasks—from hiring, firing, and promoting to contracting services and forming partnerships—qualified minority candidates are subtly and unconsciously discriminated against, sometimes simply because they are in the minority: There are not enough of them to counter the propensity for in-group favoritism in the majority.

In Reducing Impact of Affinity Bias in the Legal Profession, Stella M. Tsai notes the importance of relationship to achieving success in the legal profession. She writes:

…relationships have a profound effect on the opportunities the attorney receives. Diverse attorneys can be viewed, often unconsciously and unintentionally, as outsiders due to their difference— which makes it difficult for them to be informally included in work assignments, social events, coffee breaks, casual conversations and other situations that are essential to success.

She goes on to note that:

The research compiled by the bar associations shows that diverse attorneys report having limited access to formal and informal networking opportunities; internal information networks, i.e., the proverbial grapevine; meaningful work assignments; training; mentoring and sponsors; and substantive contacts with clients. Also, they will receive inadequate feedback and “soft” evaluations (doing “fine” as opposed to meaningful review and suggestions for actions that will lead to advancement) and report that others feel uncomfortable around them.

Is it enough to be aware of this bias in order to combat its effects? Banaji, et al concluded that affinity bias cannot be combatted merely by “simple conviction nor sincere attention” but that those in authority must be ever vigilant and actively collect data, shape their environments and broaden their decision making. Further, those in leadership must take every opportunity to implement policies of affirmative action.

This advice is consistent with the solutions proposed by Sossin and Lyon but goes a step further into concrete action. Tsai sets out a range of other steps for law firms to take, based on the body of research in the U.S. Her suggestions include:

• Examine hiring criteria in order to determine whether GPA and other objective criteria are the best predictors of success or if other factors should be equally important in selecting law students for interviews. The hiring criteria should match the competencies that are needed for the position and should also drive training, development, evaluations and promotions within the law firm.
• Evaluate interviewing skills and techniques and educate/train attorneys on the organization’s diversity and inclusiveness commitment in order to effectively communicate with applicants during the interviews. It is also important to educate and train attorneys and staff involved in interviewing and hiring about the role of unconscious bias and to identify the factors that create successful attorneys in the firm and create interview questions that identify those characteristics in the candidates. Make sure that at least one individual who is part of the interview team has the responsibility to discuss diversity and inclusiveness initiatives at the firm.
• Work to increase pipeline efforts of diverse students into the profession, including participating in college and law school mentoring programs for diverse students and explore adding diverse 1L students into the summer program.
• Lawyers with authority to allocate work should strive to be more self-aware and step outside of their comfort zones.
• Rather than require a new associate or hire to prove themselves, assume competence and allow them to succeed or fail based on the work product they produce for you.
• Analyze diverse attorney departures from the firm to determine why these attorneys have left, which may include conducting thorough exit interviews. If a pattern emerges, address these issues as part of the retention process.
• Incorporate diversity and inclusiveness questions in the annual evaluation process.
• Develop affinity/support groups that should be open to anyone interested in participating. All affinity groups should have a defined business purpose as well as foster supportive relationships and networking.
• Personnel involved in evaluations need to have training on unconscious bias and the organization should consider having one person review all evaluations for patterns of unconscious bias.

Each of these actions, on its own, won’t likely suffice, and doubtless even more action is required. Whether hiring associates, selecting volunteers for committees or inviting speakers to participate in conferences and panel presentations, what is clear is that good intentions and rhetoric alone won’t help to close the gaps.

Action is required and in order to be effective, it must initiate with those in positions of authority or leadership. Unless those at the top of our profession “walk the walk” in collecting and analyzing data, developing and implementing policies and ensuring that concrete action is taken on an ongoing basis, we’re unlikely to see any significant progress toward that goal when we look around our boardrooms, classrooms and conference halls.