7 Ways Unconscious Bias Inhibits Legal Diversity & Inclusion

By Bernard Knight
January 16, 2018

Unconscious bias prevents law firms, corporations and Government agencies from hiring the best talent and retaining that talent.  Bias against those that are not in the majority group generally is not intentional.  We are all biased no matter our race, gender, sexual orientation or other differentiators.

Thoughtful legal managers develop a strategy to help recognize the existence and minimize the effects of unconscious bias.   This requires acknowledging that it exists and then developing procedures to help minimize its effect.   The result is not only a more diverse and inclusive workforce, but one that is more productive and innovative.

What Is Unconscious Bias?

Simply put, we prefer people who are most like us. It’s a long-outlived survival mechanism.  To make the point, it distinguishes us from the enemy. This is human and we all have this bias whether we are in a diverse group or not.

keigroen / Pixabay

Our brains automatically take short cuts to protect us and to make quick decisions.   All animals, including humans, tend to favor the familiar.   The work of Konrad Lorenz with baby ducklings is an example.  He showed that baby ducklings are hard wired to imprint on the first figure that they see after hatching and follow it.   Generally, they will see their mother and follow her.   This is a protection mechanism to protect the young ducklings.  The message is that the familiar will not harm.

The same holds true for humans.   Fondness for the familiar is a self-defense and survival mechanism. This is true whether it’s your mother, gender, race or sounds.  It’s a way to categorize us versus them.

Brains take shortcuts in order to act and reach decisions quickly.   We have to rely on our gut instincts in order to make decisions and to decide between options.  These gut instincts are the unconscious portions of our minds that allow us to make decisions. It also is based on outdated survival mechanisms from the past.

This is why alarm bells should go off in your head if you ever feel like selecting or promoting a person because you would most likely want to hang out with them or invite them to your home.   This is the wrong basis on which to make employment decisions, but we do it all the time.   We all are more likely to want to hang out with people that are more like us or who we feel we have more in common with.

Unconscious Bias Inhibits Diversity & Inclusion

Yet, unconscious bias inhibits our ability to make decisions regarding people based on that person’s particular background and performance.  Instead, the decision is based on an unconscious preference for people who are similar to the person making the decision or the people in power.

This unconscious pull for the familiar unintentionally has a discriminatory effect and works against diversity and inclusion strategies.   Knowing the effects of unconscious bias and how to recognize it will help you make more diverse and sound employment decisions.

Have You Ever Felt Different in a Group?

You know this feeling.   It’s where you are the only man at a table with all women or you are the only Asian in a room of all white folks.   It’s a weird feeling because you feel different, like you are not part of the in-group.   Left-handed people experience this on a daily basis because everything in the world is built for right-handed people.

Unsplash / Pixabay

This is what it’s like to be in the minority group.   You notice the differences instantly because you are affected by them.   People in the majority or in-group don’t notice this difference because they are not affected by it.

I was recently at a meeting where I was the only white person; everybody else was African American.   The meeting was a membership meeting of the DC Mental Health Counselors Association and I was just named the President-Elect of the Association.

The leadership of the Association was all African-American, so some diversity was desired.   The leadership recognized this and asked me to step up.   They never said that this was the reason, but in my eyes, it had to be since I had recently joined.  That was terrific that they were so inclusive.

It was an odd feeling.   I noticed instantly that I was different and felt a bit self-conscious.  I’m a white male and felt quite accurately what it’s like to be in the minority.   I felt like the black lady in the above picture; on the sidelines and looking in.

Maybe the lady in the picture above felt like an outsider in a group of all white colleagues.   She is standing on the outside of the group and I wonder if the others made her feel welcome.   I doubt that they did because they probably didn’t even think of it.

The Majority Group Will Not Notice the Dynamic

The majority group usually will not notice the difference because they are not affected by it.

Yet, there are many times when I have been with a group of white folks when there is only one Asian, Hispanic or African American.   I never gave it a thought how that person felt and if they felt included.   That’s because I was not affected by the difference.

When we are in large organizations, we unconsciously seek out affiliations with those who are like us for support and comfort.  For example, I sought out the only other gay partner in my firm in the DC office for friendship and camaraderie.  The majority group generally is not aware of this but the diversity group is keenly aware.  This is the insider-outsider group dynamic.

The outsider group (as a group) has less power than the insider group. This happens in law firms where an associate may be the favorite of a rainmaker while other associates are not. This creates an insider-outsider group dynamic of its own.

Stereotypes can form the basis of unconscious bias and they are beliefs that may or may not have any application to the individual person who is a member of the stereotyped group.   Yet, the person is often judged by these stereotypes and unfairly so.

We unconsciously form opinions about people based on ingrained stereotypes and this makes the person in the minority group feel different.   It also affects our judgments and actions related to the person.  Here are some common stereotypes:

  • Gays are fashionable.
  • Lesbians are manly.
  • Asians are good at math and technology.
  • Italians are good lovers.
  • Women are bad drivers.
  • Lawyers are argumentative.
  • Africans are good dancers and have rhythm

This is unfair even if it’s unintentional.  It also causes us to make poor employment decisions.

The dangerous thing about stereotypes is that they are often at least partly true.   For example, I am certain that some women are bad drivers (just as some men.).   Yet, the stereotype may have no application at all to the particular woman we are talking about.

Diversity and Inclusion is the key to success.   Diverse organizations are more innovative and creative.  Homogeneity is the downfall of many organizations.

The 7 Negative Effects of Unconscious Bias

Left unchecked and unrecognized, unconscious bias works against diversity and inclusion.   Here are 7 negative effects:

  • Lack of diversity in the hiring pool.
  • Failure to hire diverse candidates from the pool.
  • Diverse lawyers being excluded from the plum work assignments.
  • Developmental opportunities being awarded to lawyers in the majority group more than to diverse lawyers.
  • Higher attrition rates for minority lawyers.
  • Lower promotion rates for minority lawyers.
  • Poor performance of lawyers in the minority group to conform to stereotypes.

These negative effects and others lead to lower diversity and inclusion and to a less productive and innovative workforce.   The costs are high.

Let’s Work Together to Identify and Mitigate Unconscious Bias

I can help you develop a strategy to identify and ameliorate unconscious bias in your organization.   The result will be a more inclusive workforce that is more productive, innovative and happy.   Check out Bernie’s Coaching Website for more information.

The Author

Bernard Knight

Bernard Knight is a career coach and counselor, and is a licensed professional mental health counselor in Washington, D.C. Bernie was a partner practicing complex patent litigation in the law firm of McDermott Will & Emery LLP from 2013-2017. Prior to joining McDermott, Bernie served as General Counsel for the U.S. Patent and Trademark Office (USPTO) from 2010 to 2013. As General Counsel of the USPTO, he led the development and legal review of the regulations implementing the new Inter Partes review, post grant review, business method review and derivation proceedings, as well as the regulations changing the United States to a first-inventor-to-file system. Bernie previously served as Acting General Counsel of the U.S. Treasury at the height of the financial crisis. From 2001 to 2006, he was Deputy General Counsel for the USPTO. Bernie began his government career in 1991 at the Department of Justice, Tax Division, where he served for 10 years.

For more information or to contact Bernie, check out his Coaching Website.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 12 Comments comments.

  1. Joachim Martillo January 16, 2018 8:17 am

    Bernard Knight failed to mention age exclusion.

    It is actually an extremely important issue in patent law, in which so much depends on prior art.

    It was proverbial at MIT that those that don’t know Multics are doomed to reinvent it. Multics is still around and can be run on a hardware simulator. I used Multics in the 70s and 80s.

    Many “inventions” believed to have been invented in the 90s and 20-naughts were already present in Multics of the early 70s.

  2. Judge Rich's Ghost January 16, 2018 10:15 pm

    These are stereotypes for a reason.

    Gays are fashionable.
    Lesbians are manly.
    Asians are good at math and technology.
    Italians are good lovers.
    Women are bad drivers.
    Lawyers are argumentative.
    Africans are good dancers and have rhythm

  3. AP January 17, 2018 9:22 am

    Except that there is no evidence of a link between the implicit bias test and behavior, or evidence that implicit bias training has any desired effect on behavior. There is in fact evidence for an effect in the other direction for training, which should not be surprising for anyone familiar with totalitarian indoctrination campaigns. The implicit bias field is mostly cargo cult science.

  4. Bernie Knight January 18, 2018 8:57 am

    I agree with Martillo that ageism is another form of discrimination. It is often overlooked, even by me. Thanks for mentioning that! It is very difficult to find a new job after age 50. People have the “stereotype” that older folks don’t want to work hard, which is wrong. We all develop great wisdom with age and that is a real and valuable asset.

  5. Bernie Knight January 18, 2018 9:02 am

    Judge Rich’s Ghost you miss the point! It is not that stereotypes are never true. They are sometimes true. That’s the harm in adopting them. For example, some Italians may be good lovers. However, that does not mean that anyone is correct in assuming that all or even most Italians are good lovers. If you use that approach in your dating, I’m certain that you will be disappointed because stereotypes are not true in all cases. That’s the point! So, please go out and date and enlighten yourself.

  6. Bernie Knight January 18, 2018 9:11 am

    AP you are incorrect. Implicit bias training helps managers and partners make better employment decisions. If you recognize your unconscious biases, you will be able to avoid decisions based on those biases. It’s the concept of self-awareness. You cannot change any behavior until you are conscious or aware of it. There is evidence that diverse and inclusive teams are more creative and innovative than homogeneous teams. Think about it and take this opportunity to learn more. It might broaden your perspective.

  7. Gene Quinn January 18, 2018 6:05 pm

    Bernie-

    Off topic perhaps… but I wonder whether there is something here for scientists, engineers and researchers to also learn about their own unconscious biases. Although not the same kind of biases the article talks about specifically, it has always seemed to me that there is a reason why younger minds tend to have the biggest breakthroughs. They aren’t afraid to ask questions, test and probe.

  8. Bernie Knight January 19, 2018 6:15 am

    I agree, Gene. Unconscious bias affects everyone, not just lawyers. Great suggestion to take a broader perspective in the next article.

  9. Leftist Indoctrination January 19, 2018 1:11 pm

    “Implicit bias training helps managers and partners make better employment decisions.”

    By “better” you mean “more diverse” because they feel socially pressured to hire those unlike themselves simply because those people are unlike themselves. And even that is subject to dispute from the point of view of the evidence. Further the implicit value judgement that this is “better” is a value judgement that is blatant leftist indoctrination. And your recited list of “benefits/lack of negatives” lack substantial evidence. Junk science which nobody outside leftist “social science” depts. accepts.

    There is literally no evidence that this is “better” in an OBJECTIVE way except for the minorities which leftist indoctrination was and is still literally created to benefit. Which makes your whole article boil down to: come on guys let’s just be nice to minorities just because. Which is fine, and which I’m open to considering, but you can spare us the leftist indoctrination that you’re attempting to use (and have been subjected to yourself) to get there.

    By way of explanation, the above noted lack of objectivity in the value judgement being made is because leftism (and the above leftist ways of thinking in the article) is based on “post-modernism” which is a philosophical “way of thinking” which asserts that nobody can never make objective decisions or value judgements etc. (this is obviously untrue except in the extreme, where it is true, but post-modernists go too far by expanding that to general everyday instances). So they just default to “whatever helps the victims of the white cis hetero christian capitalist patriarchy is “good/better”” simply because they consider those people to be oppressed. Which is fine, but again, leftists need to be up front in how they get to their value judgements as their methods of making value judgements are against the enlightenment values that normal people in society use on a daily basis to make their value judgements. When leftists try to pass off their value judgements as being objectively based under enlightenment value judgement systems, when they are actually not based thereupon, it is just deception.

  10. The Enlightenment January 19, 2018 1:19 pm

    “Off topic perhaps… but I wonder whether there is something here for scientists, engineers and researchers to also learn about their own unconscious biases. Although not the same kind of biases the article talks about specifically, it has always seemed to me that there is a reason why younger minds tend to have the biggest breakthroughs. They aren’t afraid to ask questions, test and probe.”

    You’re absolutely right about that Gene. From the enlightenment perspective (on which science is based) I mentioned above, based on reason, logic etc. scientists and engineers must try, though may fail to, keep a watch on their own biases unconscious or not and they can get quite pronounced with age.

    But, with that said, and this is key and a large difference from the post-modernist philosophy and perspective, under the enlightenment perspective and philosophy scientists and engineers will at the end of the day accept that they CAN in fact make determinations (including value judgements) objectively, or at least objectively enough for everyday purposes. As an epistemological judgement. If they do not accept this, then their whole science or engineering endeavor will be assured to fail. Thus, leftism (based on postmodernist philosophy) is inherently at philosophical odds with science (based on the enlightenment philosophy) and will be forever. This is by design, of the leftists, by the way.

  11. John Sansui February 10, 2018 8:25 pm

    According to this author, individual merit must sometimes yield to identity quotas. Obviously, he doesn’t say it, but that’s the clear consequence of his agenda.

    Suppose you are a hiring manager. From the pool of applicants, you have whittled it down to 2: a black woman and a white man. By every objective measure, the white male is more qualified for the job – better grades, school, experience, etc. However, there is a diversity issue: the team currently consists of 2 men and 1 woman (and she is white).

    Now put yourself in the position of the manager (who is also a man). Your company has spent millions in diversity awareness campaigns, including unconscious bias training and “testing”. Last year, your company was sued by several former employees for alleged sex and race discrimination, which cost 2 million to defend. Your manager is a lesbian. In addition, your “commitment to diversity” is a metric by which you are gauged for promotional opportunities.

    Now, which applicant would you rather be: the better or lesser qualified? And if you were the male applicant, you would ask: why should any of this noise yield to my right to be judged as an individual instead of by a group?

  12. Bernie Knight February 13, 2018 8:12 am

    Hi John,

    The issue is creating level playing field so that the best qualified candidate is the one who is hired. Unconscious bias inhibits our ability to see people in a truly objective manner. Our biases cause us to use certain stereotypes in making assessments about candidates. These stereotypes are untrue in many cases and prevent the hiring manager from hiring the best qualified candidate. My article is about how we all can level the playing field and see candidates for a position based on their true qualifications rather than on preconceived notions about them based on their appearance or other attributes that have nothing to do with the job qualifications.