Fixing Unconscious Bias in Law: Tips for Firms

Lawyers pride themselves on their commitment to reason and objective assessment of facts. But attorneys are human, harboring incorrect assumptions about others based on unconscious beliefs. 

It’s natural for humans to have unconscious biases, but letting them go unchecked can lead to harm to individuals and communities. Shedding light on the phenomenon through education can help increase the vitality, relevance, and effectiveness of law firms as professional entities that serve the public. 

What is Unconscious Bias?

Unconscious bias is when a person makes judgments about groups of people but they are not aware of it. People organize their social worlds by categorizing, and social stereotypes arise from this tendency. Everyone has some kind of unconscious bias about others. 

The problem with an unconscious bias is that it makes assumptions about others that aren’t necessarily true. Those who are on the receiving end of a bias can benefit or suffer as a result of this bias, without justification.

Because the word “bias” can make people defensive, some educators prefer to use “belief.” The concept of everyone having hidden beliefs is often less threatening and easier to identify. It’s also something that’s easier for people to accept and start to change.

What are Some Manifestations of Unconscious Bias?

Unconscious bias comes out in subtle ways. It impacts how lawyers relate to clients, the community, and each other. Some well-known biases in psychology become relevant as lawyers who are typically underrepresented in the profession try to navigate it. 

Specifically, lawyers can experience affinity bias. This is the natural tendency of people to gravitate to others they see as similar to them. That might mean grouping based on race, background, or gender identity. 

People within these groups tend to favor each other when it comes to work assignments and promotions, without explicitly realizing they are excluding someone of value who doesn’t fit into the group. This can lead to leadership teams made up primarily of one race or gender, with others who aren’t the majority left on the outside.

Lawyers can also experience confirmation bias. This is when a person uses their preexisting beliefs to assess a circumstance or situation. Again, this happens subconsciously, so people aren’t aware of their bias. In business, confirmation bias occurs when leaders look for evidence to support their belief in an idea. Those below them on the hierarchy echo the leader’s point of view.  

Confirmation bias can have a darker side. In an experiment run by consulting firm Nextions, 60 lawyers across 22 firms were given a hypothetical research memo supposedly written by a third year associate. The memo was deliberately drafted to contain errors. Among those lawyers told the memo was written by a Caucasian male, the memo was rated 4.1 out of 5. Of those told it was written by an African American male, the same memo was rated 3.2 out of 5.

The Nextions study shows that unconscious bias not only excludes people from collegial settings where they need to be to advance, but can also result in their work quality being undervalued.

Who is Most Impacted by Unconscious Bias?

Diversity is an emerging issue in the legal profession. While the industry has historically been largely white and male, there is growing representation of other groups. According to the American Bar Association (ABA)’s Profile of the Legal Profession 2023, there has been an increase in the number of non-white and non-male lawyers in practice.

Specifically, about 39% of the profession identify as women. That’s up from 3% in 1970 and 20% in 1991. In 2023, 21% of lawyers identified as people of color. There are important differences here as well. While 6% of lawyers are Asian American, nearly the same as their representation in the total population (6.3%), other groups are significantly underrepresented. People who identify as Hispanic make up 6% of lawyers but 19.1% of the overall population. 

Identification of the “other” is an important manifestation of unconscious bias. It is therefore possible that people in underrepresented communities might experience the most harm from it.

How Attorneys and Law Firms Can Fix Unconscious Bias

Even lawyers who are committed to combatting unconscious bias can find fighting these practices challenging. It’s important to start somewhere, starting small if you have to, and work towards greater understanding and acceptance. Here are some ways to begin:

Download resources. The ABA’s Diversity and Inclusion 360 Commission has a toolkit designed for judges, prosecutors, and public defenders. These tools are also excellent for lawyers in non-criminal practices.

Develop awareness. The idea is that everyone carries with them implicit biases. Learning what yours may be is an important first step towards behavioral change. Tools like the Implicit Assessment Test (IAT) can help shine a light on unconscious ideas.

Pause and reflect. This gives you the space to identify when you might be about to make a decision that’s influenced by an unconscious bias. Stepping back can give your rational judgment time to kick in.

Implement objective criteria in hiring practices. It is important to assess people for who there are now and to give them a fair opportunity to demonstrate their value to the firm. Looking for concrete factors beyond “fit,” can help to achieve this. 

Consider a diversity, equity, and inclusion (DEI) team. DEI professionals are trained to help organizations to see the value of the entirety of their staff. Consider hiring a DEI team to help with this work.

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