Women in Law: Unconscious bias training a pathway to more diversity, chief inclusion officer says

When doing unconscious bias training with lawyers, Sylvia James says the legal community can be a tough crowd.

The Washington, D.C.-based chief diversity and inclusion officer with Winston & Strawn says that it is not because lawyers don’t want to be fair and equitable. Perhaps more than other groups of people she has worked with, lawyers “probably put a lot more weight on fairness and equity,” James says.

The trick, she says, is helping lawyers understand that sometimes unconscious bias is, well, unconscious. “People may buy into the overall concept of unconscious bias being a factor, but you have to really dig into what particular unconscious biases people might have that they aren’t even aware of.”

James will be a featured speaker at Canadian Lawyer’s Women in Law conference on Feb 18.

James collaborates with key stakeholders to develop and implement the firm’s diversity and inclusion strategy and initiative. She works with the talent management team at her firm to enhance the hiring, advancement, retention, and promotion of diverse lawyers. She also serves as a liaison to clients and external organizations dedicated to fostering diversity in the legal profession and conducts diversity training with the firm’s employees.

James often starts her training sessions with simple exercises to get people to understand how unconscious bias can seep into the most benign situations. Like showing a photo of a woman in medical scrubs and asking what that woman’s profession is — usually, the majority of people will say she is a nurse when the reality is that she is a doctor.

It’s like the old riddle of the father and son who are in a horrible car crash that kills the dad. The son is rushed to the hospital. Just as he’s about to go under the knife, the surgeon says, “I can’t operate — that boy is my son!”

James says it’s a riddle because many are not plugged into thinking that the surgeon could be the boy’s mother. “People will go through every iteration of a man before they think it might be a woman,” James says.

Another icebreaker James uses in these training sessions is showing photographs of various people and asking participants to pick out the most trustworthy. “Well, overwhelmingly, 90 per cent of them will pick the biggest criminal in the group, right, based on their own unconscious biases.”

James also points out that these examples of unconscious bias aren’t just theoretical problems — they have real-world consequences, such as the impact it has on recruiting, work assignments, and performance evaluations.

She points to one study that asked practising lawyers to grade a memo supposedly written by a third-year associate from NYU law school. Half of the lawyers participating were told a white student wrote the memo; the other half were told a Black student wrote it. The memo was graded 4.2 out of five by lawyers who thought the author was white and 3.1 by those lawyers who believed the author was Black.

Another part of the study involved intentional grammatical mistakes included in the memo. Those grading the memo supposedly written by a Black student found more mistakes than those grading the memos thought to be written by a white student.

“So, translate this type of leniency towards the white student into the interview process,” James says. “Is there an unconscious bias to treat the non-white candidate more harshly than the white candidate?”

Likewise, James describes the unconscious bias that can surround names. She notes professors called upon her to answer questions in class when she was in law school, likely because her name was “easy” to pronounce and not a “Black-sounding” name. She also describes once talking to a law professor who admitted to never calling upon students with a foreign-sounding name because it was “harder.”

When it comes to women and gender bias, James talks about the “maternal wall” on work assignments. A female lawyer might not be assigned a case with extensive travel because she has a three-month-old baby, and her supervisors think they are “being benevolent” and doing her a favour.

“But that is without asking her directly what her desires and circumstances are,” and not assigning an important case that involves travel could have negative consequences for her career. “So, the important thing is you have to have that conversation to see what she wants. You can’t assume that the woman who just had a baby isn’t willing to kind of do the travel that is needed.”

Another instance of dealing with unconscious bias is in the performance evaluation process. Winston has a program to look back on evaluations to see if any bias has seeped through them. James says there can often be cases where a female and a male lawyer are both rated “excellent,” however, the male’s evaluation is longer and has more concrete details. In contrast, the woman’s evaluation has more generic, unspecified language that is not helpful in career development.

“The male evaluation offers more feedback, and is more actionable,” James says, “the woman’s evaluation has nothing you can sink your teeth into.”

James says that dealing with unconscious bias and diversity in the legal workplace is more than just about being fair and equitable. “There is a lot of research that shows that diverse teams have better outcomes,” and leads to better courtroom and litigation practices. For example, dealing with a sexual harassment claim made by a woman is immensely improved by having a female lawyer’s perspective, James says, not just a group of male lawyers.

Despite the challenges that lie ahead, James says there have been many positive outcomes due to the unconscious bias training courses she has delivered. Those who have taken her training say that it has been “among the most impactful things” they have seen move the needle on inclusion and diversity. It has had an impact on recruiting, work assignments and performance evaluations, she says.

“What I like to focus on is people looking at and changing their behaviour because that ultimately fits into the bigger picture.”