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Resources Articles When All Efforts Fail to Retain Them…Unintentional Biases May Be At Work

When All Efforts Fail to Retain Them…Unintentional Biases May Be At Work

New York Law Journal Magazine
Volume 7, Number 2
May 2008

Rates of associate attrition from the largest law firms in the United States are higher than ever, in spite of years of efforts to reduce them. As associate compensation has soared, the tenure of these well-paid young attorneys at their firms has become ever shorter.

According to research conducted by the NALP Foundation, almost 80 percent of attorneys at large firms leave within five years of being hired. Minorities and women depart their firms at much higher rates than do non-minority attornfeys. Trying to find a woman attorney of color still at her original large law firm employer eight years after being hired would prove more challenging than finding the proverbial needle in a haystack.

 

If affinity groups, mentoring programs, reduced-hours policies, on-site child care, opportunities to trade money for hours and diversity training fail to stem the exodus of associates from large firms, why aren't these efforts producing their desired effects?  Women and attorneys of color share with white male lawyers many reasons for leaving, including the assumption that work and life are a zero-sum game; mind-numbing assignments that have little to do with their reasons for pursuing a legal career; and the slim odds of making partner, along with a lack of perceived control over the factors ultimately influencing that decision.  Large firm culture continues to cling to norms established by the white men who created and continue to dominate private practice. Current billable-hours requirements require male and female attorneys to choose law over life. As a result, many associates entering firms begin their tenure with a plan to leave after paying down their law-school debt.

When, in my capacity as a consultant, I conduct focus groups of associates, it is now rare to hear any aspirations to partnership.  Wealthy, burned out partners paying multiple alimonies do not inspire longevity among most junior attorneys.  However, diverse attorneys, more than their white male counterparts, bump up against other cultural norms that have been part of law firm mores for so long that they appear to be professional requirements rather than preferences or the way things have always been done.

What Are Unintentional Biases

Indeed, I strongly suspect that cultural assumptions-normative in law firms and in the larger social structure in which they are embedded-and the self-fulfilling prophecies to which they lead, play a significant role in many failed efforts to retain diverse attorneys.  In particular, unintentional biases may lead many women and attorneys of color to leave their firms. Psychological research indicates that unintentional biases arise from the normal human tendencies to categorize things and people into groups, to prefer familiar things and similar people and to cognitively simplify our complex world. These mental processes evolved no doubt due to their survival value (e.g., it's essential to differentiate dangerous enemies from our kin.)

When we engage in social categorization we accentuate the differences between groups. We also attribute greater differentiation between the individuals in the groups to which we belong than to outgroups.  We tend to homogenize the behavior of groups with which we do not identify; we underestimate differences within these groups.

As a psychologist who consults with law firms and lawyers, I encounter this routinely.  Although all psychologists are not assumed to look alike, I am told that we think and act alike (for example, too "touchy feely") while at the same time being reminded of the distinctiveness of individual attorneys and their firms.

It is also the case that we favor our own groups and their members while disparaging or discriminating against groups to which we do not belong. For example, we are likely to see them as less able than in-group members, to recall their errors while easily remembering the successes of similar others, to be less generous and at times to behave more aggressively toward them. 

Relying on stereotypes, like categories, is a strategy to make the world simpler and therefore easier to negotiate. Stereotypes are mental shortcuts or heuristics-beliefs we have about the attributes typical of particular groups.

Research has demonstrated that our beliefs about what makes a "good lawyer" are the same traits attributed to men: individualistic, tough, independent, etc. Women, on the other hand, are assumed to be nurturing, dependent and caring-not your image of the powerful leader you want running your firm. And, as the current political scene so clearly demonstrates, we don't like women who don't fit the stereotype of how women are "supposed to be."

Regardless of your political preferences, the fact that Hilary Clinton is perceived as competent but aggressive, and the media frenzy over her "fake" tears, should drive home just how difficult it is for a woman to violate her prescribed stereotype. The same qualities that indicate strength and confidence in a man are viewed as arrogance and aggressiveness in a woman. 

The content of racial stereotypes may lead well-intended people to assume that Asian-Americans will have answers to all technology and mathematics questions, American Indians will want to work on American Indian land law issues, Latino-Americans can reveal the secrets of how to sells to the Hispanic market and that African Americans are simply less competent since their prior achievements were likely due to affirmative action rather than ability and ambition.

I am not at all suggesting that most large law firm attorneys hold conscious negative biases about women or attorneys of color. The process that I am suggesting undermines so many well-intentioned efforts to retain women and attorneys of color is far more insidious. 

Cognitive psychologists have demonstrated that stereotypes and biases can operate outside of our conscious awareness, distorting our perceptions, judgments and memories and influencing our behavior. Implicit biases most often reflect stereotypes that people truly do not know they have and often consciously reject and abhor.

Human beings also have a normal tendency to seek confirmation for their biases. We seek, notice and interpret information that confirms our beliefs and ignore, avoid or undervalue data that contradict them. It is also easier to recall confirmatory information. 

When we make rapid decisions we are vulnerable to being guided by our implicit biases, even those we would not consciously endorse. Automatic, unconscious biases are most likely to influence our judgments and behavior during stressful circumstances, in complex situations, and when we are time-pressured. Our gut feelings, intuitions and snap judgments typically reflect these automatic, unexamined biases.  In particular, unintentional biases have been shown to strongly, negatively influence the performance evaluations as well as friendliness, willingness to help and non-verbal behavior toward out-group members.

Stigmatized Policies

Hours continue to be the bottom line measure of an associate's worth. It is very difficult to define less tangible criteria that most law firm partners would agree might make a part-time attorney more valuable than a full-time one. Women practicing law on reduced-hours schedules have more than demonstrated that traditional beliefs about professional commitment are wrong-headed, but such assumptions are slow to change.

A partner who consciously or unconsciously believes that mothers are less committed to their legal careers than are attorneys without children might be likely to interpret a woman's absence from her office as a sign that she's home with her children rather than with a client. In fact, this is precisely what surveys conducted by the Project for Attorney Retention have found.

Whereas attorneys who are not parents are assumed to be engaged in some work related activity when not at their desks, once women return from maternity leave, their absences are often attributed to involvement in family affairs. This assumption both derives from and confirms the theory that her commitment to her career has diminished. 

Based on this assumption, it would follow that the partner would save more challenging stretch assignments for more promising associates. The belief that a mother cannot have the unimpeded focus of someone not distracted by childcare issues could easily lead to selective perception and memory of her errors. Again, the Project for Attorney Retention has found that many women attorneys receive poor evaluations for the first time in their careers after returning from parental leave.

The option of reducing hours by itself is insufficient to retain women. Implicit stereotypes make the use of such policies stigmatized; it's no wonder that only 5.4 percent of attorneys take advantage of them while they are almost universally available. As research by Catalyst and others indicates, women more often leave their firms because they feel pushed out rather than pulled by family demands.

Many women leave their firms in exhaustion and despair after years of being "out-group" members who are excluded from the informal networks needed for career advancement opportunities, and having tried repeatedly to prove their competence to partners whose unconscious biases blind them to evidence inconsistent with their beliefs. Meanwhile, the supervising attorneys who expected them to leave have their assumptions confirmed by their departures.  Their role in creating self-fulfilling prophecies remains invisible to them.

Self-Fulfilling Prophecies

A similar process occurs for attorneys of color.  Indeed, scholars like David Wilkins assert that black associates are less likely to get good assignments early on due to implicit assumptions about their competence, or what some have called "the prejudice of low expectations."

The NALP Foundation's "After the JD" Longitudinal Study reported that minority associates were more likely to be assigned routine tasks such as research and due diligence and less likely to receive challenging work assignments that communicate trust or promote autonomy.

The ABA Commission on Women in the Profession's study, "Visible Invisibility," found that the mentors of women of color did not help them become integrated into the firm's internal networks, receive desirable assignments or have substantive contact with clients.

"Perhaps the most subtle and sinister way in which
implicit biases influence the retention process is
through what psychologists call micro-inequities,
small, often non-verbal and hard-to-prove events."

The sheer presence of a mentoring program should not be expected to eliminate the effects of implicit bias on the part of mentors. Implicit stereotypes result in an accumulation of disadvantage. It is not an uncommon experience for an attorney of color to make an error on an assignment due to the lack of prior learning opportunities.  Again, confirmation biases lead such errors to be noticed, remembered and interpreted as indicators of incompetence, thus confirming the stereotype.

Even in large firms with work assignment systems intended to ensure equal opportunities to learn, the reality of the system varies from one practice group to another. Very often, informal market systems truly govern how associates receive assignments. In these cases, opportunities flow through informal networks from which women and minorities are excluded.

Micro-Inequities

Perhaps the most subtle and sinister way in which implicit biases influence the retention process is through what psychologists call micro-inequities, and Stephen Young has popularized as micro-messaging. These small, often non-verbal events are usually hard to prove and small in nature but not trivial in effect.

The day-to-day experience of diverse attorneys is often filled with experiences of invisibility: The absence of a greeting or eye contact, minimal interaction, an unfriendly tone of voice, a facial expression communicating impatience, or cool and rejecting body language. Attorneys of color routinely hear references to "qualified minorities" but not "qualified whites" when discussing recruitment. They are often asked to be representatives of their racial/ethnic groups.

The accumulated effects of these micromessages are debilitating. Attorneys of color and women who've left their firms repeatedly say there was no single incident that drove them away. Instead, the constant subtle aggressions, exclusions, insults and invalidations drove them out of their firms. 

The subtlety of micro-aggressions makes them thorny to protest. It's difficult to imagine a woman associate complaining to a partner that he makes eye contact with the men in his practice group but not with her. People from stigmatized groups are often least likely to complain, in an effort to avoid confirming the stereotyped traits attributed to them. The fear of being labeled a "whiner" regularly silences women associates. 

Furthermore, stigma itself can be preoccupying and stressful. In order to prove competence to supervisors who unconsciously assume otherwise, women and attorneys of color must breach three successive partner filters: what he notices, how he interprets his observations, and his memory of that interpretation. It's easy to understand why the expectation that one must prove one's competence can interfere with performance.

The fact is that informal rules and cultural beliefs govern workplace behavior far more than new policies grafted onto them. When reduced hours are stigmatized they do little to decrease attrition. The presence of a diversity initiative by itself rarely spares women and attorneys of color exposure to offensive jokes and countless other microinequities.  By themselves, mentoring programs cannot prevent mistakes made by diverse attorneys from being viewed as confirmation of incompetence. "Objective" performance criteria like billable hours easily conceal the absence of opportunities to get the work needed to bill those hours.

They Need to Want to Stay

Fundamentally, attrition will not be stemmed until senior attorneys choose to behave in ways that make young attorneys want to continue to work there. 

Retention efforts are unlikely to be improved by efforts to change attitudes, conscious or otherwise. This is part of the reason that traditional diversity training has failed. However, there is research that suggests that people can adjust for biases if they are made aware of their potential influence. 

Experienced attorneys have well developed self-checking processes that they utilize in legal contexts. These skills should transfer to situations in which evaluations take place. Since biases are most likely to influence judgments in stressful and time-pressured circumstances, allowing ample time to consider all of the evidence may reduce the reliance on stereotyping heuristics.

The knowledge that implicit biases are frequently expressed nonverbally can enable partners concerned with retaining talented women and attorneys of color to intentionally behave in friendlier and more inclusive ways.  However, they must be committed to taking the time to use this knowledge in order to behave differently. To the extent law firm partners sincerely want to retain talented young attorneys, they can and will do this.

Accountability Matters Greatly

Research on what organizations can do to check implicit bias suggests that accountability measures have the most potent effects.

The more accountable senior attorneys feel (the more they expect their judgments, assignment decisions and introductions to clients to be public), the less likely they are to be influenced by implicit biases. Obviously, this is the rationale behind the current diversity monitoring of corporate counsel.

From my perspective, the most promising approach to accountability is one that makes it possible for law firm owners and employees to explicitly and directly discuss issues of bias and their interpersonal effects.  Well-intentioned senior attorneys, after some initial defensiveness, might welcome being made aware of the fact that they are inadvertently pushing out attorneys whom they wish to retain.

Instead of standard diversity training, firms might do better in their retention efforts by providing training in emotional intelligence, effective delivery of feedback, interpersonal conflict management and mechanisms for preventing biases from influencing judgments and behavior.

 

 

Reprinted with permission from the May 2008 edition of the New York Law Journal Magazine © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it . ALM is now Incisive Media, www.incisivemedia.com. # 070076-08-08-0001.

 

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