Freedom From Sterotypes (February 2009)

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      Beyond The Billable Hour™

At a diversity and inclusion training session at a New York law firm, a group of senior and junior attorneys and staff were discussing a hypothetical: a woman lawyer who had just returned from maternity leave on a reduced-hours schedule was requesting more challenging assignments. Participants literally laughed at the notion that a new mother might experience any change in the quality of her work assignments. The outlook reflected by the participants was that perhaps lawyers in other, less enlightened offices might imagine that a new mother was less able or committed, but not in New York.

Given what appeared to be a positive attitude, I asked the participants if I was correct in concluding there would be no obstacles to the new mother's promotion to partner while working reduced hours. Suddenly the laughter stopped and smiles were replaced by expressions ranging from shock to bewilderment to disappointment. "You can't be a part-time partner," exclaimed one senior lawyer. "Partners have to be fully committed to the practice and the firm." I asked if he was aware of the fact that a woman attorney in another office had recently been elevated to partnership while continuing to work a 70 percent schedule. Everyone present at this training session was incredulous - the information violated all of the participants' assumptions.

Women have been in the leadership pipeline for decades now, yet the National Association of Women Lawyers has reported once again that the presence of women in law firm equity partnerships continues to be stalled at around 18 percent. Even more disturbing, according to NALP, minority women compose less than 2 percent of partners in the nation's major law firms. Despite diversity initiatives at many firms, progress is barely perceptible. Women are well-represented among junior associate ranks but attrition remains high, and according to studies, those women who do advance, on average, are paid considerably less than their male counterparts.

Law firm culture, in particular beliefs about the characteristics of a good lawyer and about how work should be done, creates the most significant obstacle to the establishment of genuinely inclusive and multicultural law firms. Diversity scholars1 have noted that professional service firms have been the least successful of all businesses in accomplishing diversity goals. Such firms put a premium on the possession of and the ability to create knowledge. Individuals who belong to groups believed to be less competent are therefore disadvantaged in these organizations.

These beliefs are difficult to change because they are rarely explicit. Rather they are implicit biases which are particularly potent in influencing judgments and decisions made under stressful conditions and in ambiguous situations. Most large-firm lawyers regularly work under conditions in which urgency is normative.

Under these conditions - cognitive psychologists have taught us - stereotypes are likely to shape perceptions, memory and behavior. Stereotypes are simply our brain's way of making rapid sense of large amounts of information. These categories serve as heuristics in allowing us to navigate complex social situations.

Cognitive science has shown us that only 10 percent of our cognitive activity is what we think of as our "mind." These language-based, intentional, controlled cognitive processes require considerable effort and can address only one thing at a time. The other 90 percent are automatic, non-conscious brain processes which occur in parallel to intentional conscious thought. These automatic processes include gut feelings, emotional reactions and rapid social judgments. When we respond to people based on social categories, we are operating according to stereotypes, that is, automatic assumptions about the characteristics of members of that group, and, when it comes to gender, implicit beliefs about how women and men ought to behave.

When corporate counsel choose white male law firm attorneys to handle a "bet-the-company" case out of concerns about their job security, despite their legal departments' stated commitment to diversity, gender and race stereotypes are controlling their decisions. Believing themselves vulnerable to accusations of failing to choose "the best" or "most competent" counsel if the case is lost, violating diversity policy appears less risky than potential job loss. This is how normal brain processes often lead to faulty conclusions about the competence and potential of women lawyers and attorneys of color. Neither women nor blacks benefit from the attributions of competence that privilege white men. In the absence of information to the contrary, white males are assumed to be more capable.

It is also more comfortable for people to associate with others similar to themselves. Overly busy senior lawyers do not have the time to mentor the large numbers of junior attorneys recruited to a firm. They are naturally inclined to focus their limited time and attention on those whom they perceive to hold the greatest promise of success. As a result, white males are more likely to receive career-advancing opportunities such as mentoring and inclusion in informal networks. Women and attorneys of color are further disadvantaged by this because they are deprived of the opportunity to provide information that contradicts stereotype-based assumptions.

Even worse, stereotypes are self-confirming. They filter out the perception and recall of stereotype-inconsistent information. A woman's superb work product is more likely to be attributed to luck while her male counterpart's effort will be taken as evidence of his ability and potential.

Assumptions of competence are only part of the picture, however. Even more of an obstacle to the success of women in law firms are time norms. In spite of the fact that the majority of firms offer reduced-hours options, they continue to be used primarily by women and to be stigmatized. Seventy-four percent of lawyers who work part-time at U.S. law firms are women, according to a study by NALP. Among all female lawyers, 12.8 percent work part-time, whereas only 2 percent of male lawyers do so. Research2 demonstrates that women in organizations that provide subsidized substitute child care in order to meet existing workload expectations are far more likely to be promoted than those who telecommute or work reduced-hours schedules.

Policies that attempt to get rid of an emphasis on face time or reduce 24/7 schedules result in fewer women advancing to management. Gendered expectations about how work should be done persist in such organizations, and a "mommy track" is created where women advance more slowly or not at all. Research specifically conducted at law firms3 found that evaluations by senior males emphasized strong and explicit time norms in favor of 24/7 availability. Women associates were praised for not allowing pregnancy or family members' health care needs to interfere with their "commitment" to the firm.

When cultural assumptions go unchallenged, diversity and reduced-hours policies are insufficient to stop women from being pushed out of their firms due to inadequate opportunities and the absence of true inclusion.

Addressing Biases

What, then, will work to address the effects of implicit biases? Some recent law firm consulting conducted by myself and my colleague, Carl G. Cooper, Esq. of Pittsburgh, has shown some promise. Our work involved three interventions that differ from most "cultural sensitivity training" approaches to diversity. First, we educated participants about implicit bias. Social science research indicates that while stereotypes are automatic, their influence on day-to-day decisions can be controlled.

An increasing number of diversity consultants are including training in implicit bias in their offerings. Beyond didactic training, ours engaged participants in addressing hypotheticals representing typical situations in which stereotypes often disadvantage women and attorneys of color. For example, one hypothetical asked participants to address a situation in which a young African-American attorney was excluded from a litigation project due to the senior partner's assumption that the client would not want to work with her. Participants grappled with their concerns about losing business, challenging clients, explaining the exclusion to the associate, etc. The purpose of this activity is to raise what David Thomas calls "diversity consciousness,"4 that is, to create a diversity lens through which to examine thoughts, feelings and actions in order to facilitate a learning orientation to cross-race and cross-gender relationships.

In fact, our second innovation was to define diversity as opportunity. We emphasized that creating an inclusive work environment is essentially about cultivating a climate of respect, openness and compassion. To the extent to which interactions across differences can be opportunities for cross-cultural learning, individuals can move beyond categories and develop "high-quality relationships,"5 characterized by reciprocity, trust, support, information-sharing and collaboration. We placed particular importance on the creation of authentic relationships in which individual differences are not ignored.6

As lovely as this may sound in theory, I imagine that it immediately raises your "touchy-feely" hackles. Who talks like this in a law firm? Moreover, who has time?

First, the time issue: in organizations where time is money, there is natural resistance to investing considerable time in diversity activities. However, there is simply no alternative. Interrupting automatic, biased reactions requires self-observation, self-monitoring and self-reflection. Lawyers simply must slow down enough in situations in which stereotypes are most likely to be elicited in order to be alert for their influence. This is a fundamental commitment issue. Law firm leaders may say they do not have time for this kind of activity. It is important to understand, however, that there are law firms that have committed the time.

With respect to the creation of high-quality, authentic relationships - this is simply a best practice for all organizations. The management literature abounds with evidence regarding the profitability of creating positive, collaborative, learning-focused relationships.

Revealing Role Play

In our particular case, we approached what could well be viewed as a variant of emotional intelligence training by using a framework presented by Robin Ely and Deborah Meyerson in a Harvard Business Review article titled, "Rethinking Political Correctness."7 The authors propose a multi-step model for constructively engaging experiences of bias. We prepared a series of hypothetical situations and assigned roles to participants.

To illustrate, one role play involved a scenario in which a number of male attorneys discussed last night's football game and the only woman in the group tried to address her experience of exclusion. We presented participants with the situation; they improvised their own responses while we coached them on the principles for constructive engagement (see Ely, Meyerson & Davidson, 2006 for details.)

Suddenly, the only woman attorney of color in the room raised her hand. She said that the role play had resonated with her experience during her first year at the firm. She asked the white associates present how they imagined she had felt when, at a social gathering, they talked about their lifestyles, families, neighborhoods and histories with one another while she remained speechless. With tears rolling down her face, she wondered aloud whether they were curious about her interests or what it was like to be "the only one." Had it ever occurred to them that her childhood might have been different from theirs, that they'd been privileged in ways she had not, that their references to experiences available only to the privileged might exclude her? "Why didn't you say something?" asked one of the listeners.

"What should I have said?" she replied. "That I couldn't relate to anything you were talking about? Didn't you ever notice my silence?"

Participants were quiet and thoughtful. After several minutes, a white woman associate expressed her regret and a wish to repair the damage. We spent time addressing the group's feelings to ensure that no one left the room unduly upset. I spoke with the woman of color the next day. The colleague who had responded in the group had taken her to lunch. In their discussion they identified several shared interests. A number of months later they were still jointly involved in these activities.

In a subsequent follow-up with the minority associate, I learned that a senior white male attorney, the most outspokenly resistant to the time demands of the training, had offered to mentor her and she had been asked to work on several projects that matched her stated interests. Her initial skepticism about the sincerity of the firm's diversity initiative had diminished. She was feeling more included at the firm and had received glowing evaluations.

Furthermore, the firm's director of diversity has been receiving regular requests from firm members to facilitate "constructive engagement" conversations to address perceived, subtle, likely unintentional instances of bias. Should this process continue, I imagine the partner in that New York law firm who expressed disbelief at the idea of partners working a reduced-hours schedule will one day be approached by a woman associate working reduced hours about why he has not recommended her for partnership. Or perhaps, by that time, she won't even have to ask.

Endnotes:

1. Akinola, M. N. & Thomas, D.A., "Defining the Attributes and Processes that Enhance the Effectiveness of Workforce Diversity Initiatives in Knowledge Intensive Firms," Harvard Business School Working Paper, 07-019 (2008).

2. Kumra, S. & Vinnicombe, S., "A Study of the Promotion to Partner Process in a Professional Services Firm: How Women are Disadvantaged," British Journal of Management, Vol. 19, 565-574 (2008).

3. Tocci, M. J., Williams, J., Calvert, C. and Pinto, C., "Qualitative Evidence of Bias in Associate Performance Evaluations," presented at the Project for Attorney Retention First Annual Conference: Positioning Law Firms for Long-Term Success: New Strategies for Advancing Women Lawyers, Washington, D.C. (2008).

4. Akinola & Thomas, 2008.

5. Dutton, J. E. and Heaphy, E. D. "The Power of High-Quality Connections" in Cameron, K. E., Dutton, J. E. & Quinn, R. E. (eds.), "Positive Organizational Scholarship," San Francisco: Berrett-Koehler (2003).

6. Stevens, F. G., Plaut, V. C. & Sanchez-Burks, J., "Unlocking the Benefits of Diversity: All-Inclusive Multiculturalism and Positive Organizational Change," Journal of Applied Behavioral Science, 44, 116-133 (2008).

7. Ely, R. J., Meyerson, D. E. & Davidson, M. N., "Rethinking Political Correctness," Harvard Business Review, September, 79-89 (2006).

A version of this article appeared in the February 2009 issue of the New York Law Journal Magazine.  Original text reprinted with permission. ©2009 ALM Properties, Inc. All rights reserved.  Further duplication without permission is prohibited.

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