It is now well known that the legal profession has some severe problems when it comes to diversity and inclusion. Firstly, it is often not representative of the general population, because of systemic barriers faced by women, minorities and people from lower socio-economic backgrounds when it comes to going to law school and gaining employment as a lawyer. Secondly, women and minorities continue to be underrepresented in senior and leadership roles within law firms, the independent bar and the judiciary.
Fortunately, law societies, bar associations, law firms and the judiciary have, in recent years, recognised these issues. The chances are that when you research law firms or attend law firm information sessions, you’ll hear about the steps actioned to improve diversity and inclusion. One key phrase you may have heard discussed a lot is unconscious (or implicit) bias. If you’re not sure what this means – and are too afraid to ask – this post is your answer. Read on to find out why it's important to understand unconscious bias, especially as a member of the legal profession.
The problem: systemic underrepresentation of women and minorities
If you were in any doubt – recent studies have confirmed that inequalities in the legal profession persist. An article by Sam MacKeith published in LSJ Online on May 4, 2019, “Building Diversity in the Legal Profession” mentioned some alarming statistics in the Australian legal profession:
As of 2017, just 13% of female lawyers were principal solicitors in legal practice, although more than 50 per cent of Australian practising solicitors were women.
A 2018 survey showed that 44% of responders felt their employers needed to do more to encourage LGBTQI+ diversity.
A 2019 survey by 11 of Australia’s largest law firms found that while 20% of non-partner lawyers and 25% of law graduates were of Asian background, only 8% of law firm partners were Asian.
In 2019, the New Zealand Law Society (NZLS) reported that although 52% of women work in law firms, they comprise of only 34% of directors or partners. Additionally, only 21% of women were part of the Queen’s Counsel (the highest honour bestowed to a senior barrister in New Zealand) were women. The NZLS also noted that almost 25% of lawyers identifying as “NZ European” were partners or directors, which is “often far ahead of all other ethnicities.”
In 2019, the New Zealand Law Society (NZLS) reported that although 52% of women work in law firms, they comprise of only 34% of directors or partners. Additionally, only 21% of women were part of the Queen’s Counsel (the highest honour bestowed to a senior barrister in New Zealand) were women. The NZLS also noted that almost 25% of lawyers identifying as “NZ European” were partners or directors, which is “often far ahead of all other ethnicities.” Research has also shown that only a fraction of students from lower socio-economic backgrounds pursue law school in New Zealand (Kirsty Johnston, “Want to be a doctor, lawyer or engineer? Don’t grow up poor,” New Zealand Herald, September 14, 2018. The same issues can also be seen in the legal profession further afield. The American Bar Association, for example, recently reported that 86% of lawyers were non-Hispanic white people, although only 60% of US residents are non-Hispanic white people, only about 21% of female equity partners in law firms are women and only about 3% of lawyers are LGBT. (See Laura Bagby, “ABA Profile of the Legal Profession: Diversity and Well-Being” 2Civility, August 13, 2020.
So what is unconscious bias?
One explanation for why the legal profession – and many other professions – is so badly affected by inequalities and a lack of diversity is unconscious (or implicit) bias. The Kirwan Institute, at Ohio State University, explains unconscious/implicit bias in the following way:
"[T]he attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner. These biases, which encompass both favourable and unfavourable assessments, are activated involuntarily and without an individual’s awareness or intentional control. Residing deep in the subconscious; these biases are different from known biases that individuals may choose to conceal for the purposes of social and/or political correctness. Rather, implicit biases are not accessible through introspection."
Often, unconscious bases operate so that we subconsciously like and prefer people that are similar to us (this is called affinity bias). Unconscious biases can also correlate to pervasive (and demonstrably incorrect) societal myths – e.g. women with children are less committed to their careers (this is known as confirmation bias, i.e. it confirms pre-existing beliefs or assumptions).
Another form of unconscious bias, known as availability bias, is the tendency to make decisions based on information that comes to mind quickly rather than digging deeper and making sure decisions are made on an objective basis. An example of this might be assuming a job applicant with dyslexia will not make a good lawyer, without researching this learning disability or getting information from the applicant that proves that they are just as competent as anyone else. A further type of unconscious bias is where people allow someone’s positive qualities affect their perception of them in unrelated areas – for example when a conventionally attractive person is offered a promotion even if they are no more competent than another person (this is called the Halo effect).
Unconscious biases are particularly problematic in the legal profession because it has historically been dominated by people who are predominantly white, male and from wealthier backgrounds, who continue to make decisions about job offers and career opportunities. Their unconscious biases mean they may favour people who are “like” them, while women and minorities miss out.
What to do about unconscious bias
Unconscious biases are hard to combat because, by its very nature, they are unconscious: people don’t even realise they have them (and everyone has them!). In fact, people who genuinely believe in gender and racial equality can still have unconscious biases that go against these principles. So what can you – a budding member of the legal profession - do to make sure you’re not part of the problem (and trust me – EVERYONE had unconscious biases) and help others recognise their biases?
The first thing to do is to be aware of what unconscious biases are and accept that you have them.
A great way to find out about your own unconscious biases is to take a quiz online, such as the Harvard University implicit bias test. Once you’re aware of your unconscious biases, you can be more critical about your own decision-making and think more deeply before you make snap decisions or assumptions about people. Start questioning whether your own decision-making is truly objective. If you have realised that you are susceptible to believing certain stereotypes, do research that will help you combat those ideas. For example, if you find it easier to think of men in leadership positions than women, you might want to read about powerful women leaders. If you assume people whose second language is English are less capable, you might want to try learning a second language yourself to get some perspective on what it is like for those who did not grow up speaking English.
To effect change more widely, discuss the prevalence of unconscious biases with your friends and colleagues – and encourage them to try an online quiz or to read up on the issue. If you can, encourage your university or workplace to offer unconscious bias training to students/employees, especially those in leadership positions.
Talk to people in your social circle who feel like they have been negatively held back by other people’s unconscious biases, and encourage them to share their stories if they feel comfortable. With little steps like these, we can work to make the legal profession a fairer and more inclusive one for all.
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