“Never judge someone
By the way he looks
Or a book by the way it's covered;
For inside those tattered pages,
There's a lot to be discovered.”
Steven Cosgrove
As a member of the board of directors of the Association of
Corporate Counsel, I am privileged to have the opportunity to participate in a
fair share of ACC sponsored events. I recently attended the ACC
Foundation GC Dinner in Chicago where twenty-four in-house counsel
and law firm lawyers, gathered together in an intimate and “safe” environment
to discuss how to improve the relationship between in-house lawyers and their
law firm counter-parts. Assembled in the room were some of the best and
brightest private practitioners in the country and their in-house counterparts.
The dinner was extraordinarily successful on many fronts. Everyone
in attendance appreciated the need for outside counsel to develop close
relationships with their in-house counterparts in order to build trust. Another
hot topic was the need for in-house lawyers to bring “value” to their companies
through the relationship with outside counsel. I’ll discuss these topics in
future posts.
What really struck me as something that requires immediate
comment was the experience of a young African American lawyer regarding a
situation he faced while attempting to broker a deal between a client and the
management team of his law firm. At the time, the young African American lawyer
was pursuing a large client with potential for significant future billings. In
order to help bring the client into the firm, he offered an attractive
alternative fee arrangement to the client – subject to approval of firm management.
As related by the young lawyer, he pitched the alternative fee arrangement to
firm management and the idea was immediately dismissed out of hand. However,
several months later, a lawyer who was not African American pitched a very
similar proposal on behalf of the same client and the deal was accepted. The
implication was very clear – the business deal was rejected in the first
instance because the lawyer pitching it was African American.
I was flabbergasted. I found it very difficult to fathom
that, in the enlightened world in which we live today (especially in the legal
profession), a good business deal would be quashed simply because the pitch was
made by a black lawyer. Of course, I have no idea what went through the mind of
firm management as they made their decision. If, in fact, the conscious
decision was made not to accept the proposal based on the race of the person
making it then this would be a case of outright racism. However, I posit
that this was not the case[1].
I cannot speak from a first person perspective when it comes
to this lawyer’s experience as I am not a “big law” African American mid-level
associate trying to build a book of business. However, as circumstances allow, I
make it a point to seek to understand the perspectives of those who do not share
my background. After the dinner ended, I reached out to another in-house lawyer
who was African American. He confirmed that the experience related by the firm
lawyer was not uncommon. While we did not have time to delve into the topic on a
deeper level (nor do I have the space to do so here), I hope to continue the
conversation soon and to follow up in an additional post on the subject. The question thus remained – “Why did this happen?”
In trying to answer the question, I circled back to some
reading I had done on the topic of “Implicit Bias”. Implicit Bias (also known
as “Unconscious Bias” or “Hidden Bias”) has been described as negative associations
that ordinary people are found to harbor in relation to various social groups –
even while honestly reporting that they regard themselves as lacking these
biases. Stated another way – it is believing that one is impartial, but
behaving as if one is not[2].
Experience shows that one is most likely to be implicitly biased in favor of
those with whom one identifies and biased against those who are “different”. I
suppose this makes sense, after all, if someone is “like me”, I can trust them
– right?[3]
It is particularly important for lawyers to understand implicit
bias because, once understood, it becomes an important tool for the manner in
which we approach our day-to-day jobs. A study by Harvard researchers shows
that implicit biases vary from person to person and that implicit attitudes are
modified by experience. And the good
news is that implicit bias can be overcome through awareness, acknowledgement
and conscious effort. The Harvard researchers tell us that one who wishes to
rid oneself of an implicit bias can seek experiences that might reverse or undo
the patterns that created the unwanted preference. A great example of a step
that lawyers can take to help rid themselves of implicit bias is to interact
with people or learn about people who counter the implicit stereotypes.
Once we understand that we may have a bias for a particular
group or groups over others, we can attempt to manage our bias, check it at the
door when making decisions or giving advice that pertains to or affects that
group or a person within that group. For example, a lawyer or compliance
professional must consciously discard implicit biases when assessing the
credibility of a manager during an investigation or, when making decisions
about accepting another lawyer’s proposal to offer a deal to a new client to
bring in new business.
How do you know if you harbor implicit biases? I invite you
to test your self-awareness of bias against the actual bias shown by your
behavior by taking the brief Harvard
Implicit Bias Test. While not perfect or absolute, the test results should
move one to serious self-reflection and openness to the possibility that one’s
thinking is not as objective as one might hope or believe – you will likely be
very surprised by the delta between what you believe about yourself and the
objective results of the test. I also urge you to recommend the test to your colleagues
and friends. Implicit biases can be weakened, but only through awareness and
open-mindedness to the possibility.
“Strength lies in differences, not in similarities”
Stephen R. Covey
[1] “Social
psychologists use the word prejudice to describe people who report and approve
negative attitudes toward outgroups. Most people who show an implicit
preference for one group (e.g., White people) over another (e.g., Black people)
are not prejudiced by this definition. The IAT shows biases that are not
endorsed and that may even be contradictory to what one consciously believes.
So, no, we would not say that such people are prejudiced. It is important to
know, however, that implicit biases can predict behavior. When we relax our
active efforts to be egalitarian, our implicit biases can lead to
discriminatory behavior, so it is critical to be mindful of this possibility if
we want to avoid prejudice and discrimination.” Harvard Study,
visited 5/30/16.
[2] It
should be stressed that the study of Implicit Bias is not limited to racial
bias – there are many biases that exist, for example biases based on age,
physical appearance, gender or occupation.
[3]
African Americans are not immune to negative implicit biases – about one-half
of African Americans prefer Whites, the other half
prefers Blacks. National
Center for State Courts paper, visited 5/30/16.
