The burden of unconscious bias

For many years, the subject of diversity tended to focus on women in the workforce. Issues included the gender pay gap, under-representation of women in senior positions and poor maternity leave provisions. Its limited scope was something Danielle Kelly, Head of Diversity & Inclusion, Australia and Asia, at Herbert Smith Freehills, was never entirely comfortable with.

“When we talked about diversity but only framed it within the context of gender without referring to other aspects of diversity, I felt we were doing ourselves a disservice,” she says.

“Broadening the agenda reinvigorated our D&I [diversity and inclusion] programs,” she says. Some people would ask her why she wanted to broaden the scope of diversity when gender issues weren’t fixed. She considers this a limited view that presupposes that a more inclusive policy would be at the expense of work being done on gender. “Instead, I have an abundance mentality – it’s not an ‘either/or’, it’s an ‘and’. That’s really important to the overall message of inclusion.”

It is true that gender disparity is still a marked feature of the legal profession.

“Since 1993, female graduates have made up more than 50 per cent of graduates at Australia’s top law schools, and firms today are now recruiting about 60 to 65 per cent female talent,” says Joshua Price, Director of Innovation and Business Development at Symmetra. “Yet you see at partnership levels, female representation is only about 19 to 20 per cent. And that’s at some of the better firms that promote gender diversity. So we are talking about 25 years with only moderate change.”

The Law Council of Australia says   women hold only one in 10 Senior Counsel and Queen’s Counsel positions. Taking into account part-time work, the gender pay gap also is still high, with men earning up to 140 per cent more than women. According to numbers compiled by Kate Eastman SC, a senior Sydney barrister, there are more men named “David” and “Michael” than there are women in total at the NSW Bar for Senior Counsel. Eastman looked at the number of Silks in NSW listed on the NSW Bar Association website and found via the website’s name-search function that women comprise 10 per cent of that total. Davids and Michaels comprise 11 per cent.

But, as Kelly suggests, the issue of diversity naturally extends to other areas such as age, sexual orientation, and cultural and national identity. Price says there is limited diversity in almost all categories.

“We know, for example, that the Australian population is now close to 10 per cent Asian or of Asian origin,” he says. “But representation across partnerships or in the judiciary is minimal compared with that number – less than 1 per cent in most cases.”

He says ethnic diversity is also low. “You have big intakes; you have a big drop-off and you don’t really have a solid explanation for why,” he says.

The lack of insight is particularly interesting given the effects of diversity on the bottom line. A McKinsey & Company report in 2015 analysed more than 360 public companies in a range of industries in Canada, Latin America, Britain and the US.

“Companies in the top quartile for racial and ethnic diversity are 35 per cent more likely to have financial returns above their respective national industry medians [and] companies in the top quartile for gender diversity are 15 per cent more likely to have financial returns above their respective national industry medians,” it says. The report is careful to point out that correlation is not the same as causation, but notes that “the correlation does indicate that when companies commit themselves to diverse leadership, they are more successful”.

Price says that as we enter the so-called Asian Century, legal firms should understand that having a broad talent pool will be important for their financial success. Firms are merging with others that have a presence in Asia, to enter that market.

So, what accounts for these seemingly entrenched positions? One emerging explanation is the notion of “unconscious bias”. Much of the thinking has its origins in work by Project Implicit at Harvard University. Started in 1998, it looked at “thoughts and feelings outside of conscious awareness and control”.

In a judicial context, Justice Tony Pagone described unconscious bias in a 2009 speech to Melbourne Law School, saying: “In each situation as counsel or as judge the task of fact finding or fact selection has involved a large amount of intuitive decision without conscious deliberation. It has, no doubt, also been done with some preconceived or unconscious bias, potential distortion and error … The law’s response to the possibility of error by intuitive decision-making, or by unconscious bias, is to require the decision-maker … to explain how the decision is made.”

In a recent article on The Law Project blog, Law Project founder Rod Hollier assessed three US studies of the relationship between physical attractiveness and sentencing outcomes. He said the studies showed “the more unattractive the criminal, the higher the sentence. Conversely, the more attractive the criminal, the lower the sentence.” Hollier concluded that the sentences or fines courts handed down to unattractive defendants were between 119-305 per cent higher, though he was careful to point out that correlation did  not equal causation. In a partial nod to Justice Pagone, Hollier said that attractiveness appeared to have “no effect on a judge’s verdict of guilt”.

In an organisational context, however, decisions are less likely to refer directly to processes and rules. This mitigates the internal checks and balances mechanism that Justice Pagone believes applies to judges. The developing understanding of unconscious bias in decision-making has exposed how people’s intent may not match their behaviour. “It explains how people may actually genuinely think this is a meritocracy, that we make objective decisions and we choose the right person for the job,” says Price. “And yet the outcomes end up being very biased.”

Fiona McLeod, SC, president of the Law Council of Australia, says unconscious bias is insidious because the person holding the bias is often not aware of it – herself included. Her mother has a career and encouraged her children to follow their professional dreams.

“And yet when I did the test, I was stunned to find an implicit association between women and family and men and work,” McLeod says.

McLeod believes bias can undermine organisational culture and aspirations, ultimately reducing productivity and revenue.

“This is particularly relevant for the legal profession, which is having to adapt so quickly to future innovation,” she says.

“Training that helps lawyers uncover and address unconscious bias doesn’t just improve diversity, so you get a composition of the senior practice more closely reflecting the composition of the community, but it can, on the research, improve productivity and help firms attract and retain top talent.”

Kelly says the bias doesn’t need to be overt or extreme to affect career development. It can merely be an accumulation of split-second decisions based on an affinity or a rapport.

“If a partner is consistently deciding to take a certain member of his team to client meetings because they have more in common, after five years those micro-decisions mean that that chosen person has a much better network with strategic clients and probably a better internal network as well,” Kelly says.

“Meanwhile, another lawyer in the team has become even better at technical legal analysis because they’ve stayed in the office doing this while their colleague was out meeting with the client. No one set out to achieve that end goal, but that’s what has happened because of the impact of that affinity bias early on in the development of that team.”

At the same time, larger and more positive incremental changes have also taken place in the legal profession. Kelly stopped practising law 17 years ago when she started a family and saw that traditional structures didn’t allow for flexible work practices. At the time, there were fewer female partners than there are now and virtually no one worked part-time.

“When I looked up at the partnership, I couldn’t then see how a successfulcareer would work for me,” she says. “I think it’s changed fundamentally since then. We would have around 35 per cent of our female senior lawyers working less than full time. If I was a young lawyer now, I would be able to see role models and a potential pathway.”

Just as the diversity agenda includes more than gender, unconscious bias training has also evolved. The Law Society is including unconscious bias training in Rule 6.1 CPD seminars making it an option for legal practitioners completing their mandatory CPD training.

“In the early days of unconscious bias training, it was quite difficult to move it beyond being anything other than of academic interest,” says Kelly. “You’d do the training, then you’d go back to your day job and nothing really changed.”

Some of Kelly’s colleagues have questioned the value of unconscious bias training because it doesn’t appear to deliver tangible results. She says that to see the results, organisations need to link the training to their hard data.

For instance, Herbert Smith Freehills tested the argument that the gender imbalance at senior levels was due to women either taking time off to have children and then working part-time, or lacking ambition or a willingness to work in a competitive environment. The firm looked at its talent data for men and women at more junior levels. The data showed women often were under-represented in the top talent category at junior levels as well.

“That completely put the kibosh on the argument,” she says. “And, to be honest, it provided us with a business case to really invest in putting our partnership through a series of workshops to give them an understanding of the potential impact of unconscious bias on their decisions as to where merit lies.”

Today, unconscious bias training has been integrated into the decision-making processes at the firm. “Where we’ve seen the return on investment is where we have been able to align that awareness of unconscious bias with some of our own key processes,” Kelly says. “We don’t run an unconscious bias training session in isolation. Instead, it’s part of a session on better decision-making and we use our own data to highlight potential red-flag areas of unconscious bias.”

Coupled with critical support from Herbert Smith Freehills Chief Executive Officer Mark Rigotti and its regional partners, the firm has delivered small but significant results. In some practice groups, the gender balance of its top talent group has switched from a ratio of 30/70 women to men to the opposite – a proportion that more accurately reflects the number of women in the underlying population. Other programs are also helping to advance diversity more generally in the legal profession. Price points to the 13 large law firms in NSW that are “LGBTI-inclusive employers”, as measured by the Australian Workplace Equality Index. Meanwhile, McLeod notes how the blind assessment of applications – with gender identifiers removed such as names, schools and sports played – has improved the recruitment or promotion of women significantly and people from diverse backgrounds.

Kingsley Liu is NSW branch president of the Asian Australian Lawyers Association (AALA). He believes the language used to describe unconscious bias has brought about one of the most important shifts.

“We’re leaving behind the talk of ‘bamboo ceilings’ and ‘glass ceilings’ and looking at them more as opportunities,” says Liu. “There seems to be more positive views from upper management in firms about having a more diverse workforce.”

He notes that the proportion of Asian lawyers in the profession still lags behind that of broader society. According to the AALA’s 2015 snapshot, while Asian Australians make up 9.6 per cent of Australia’s population, they account for just 3.1 per cent of partners in law firms, 1.6 per cent of barristers and 0.8 per cent of the judiciary. He compares this with the US, which has 200 Asian judges.

“If we used the same ratio, we should have eight to 10 in Australia,” he says. “It takes time and that’s why, for example, the AALA encourages networking between judges and young Asian lawyers.”

Diversification at higher levels, such as at board level, also pays off. “If you are corporate counsel, you are thinking risk all the time,” McLeod says. “And, if you knew that one of the tools you had to manage risk was diversity on the board, in staffing and in procurement policies, this is where you’d see a wide uptake on diversity programs.”

When you’re dealing in complex risk scenarios, diversity improves decision-making. “That’s for the simple reason that individuals in diverse groups are not subject to the same biases as each other,” says Price. “And, it’s not just that each one knows things that others don’t know, but they actually see things differently; your unconscious biases are not the same as mine. That’s why it’s such an effective way to both manage risk and see opportunity. You don’t have the same assumptions; you don’t have the same limitations in the way you view the world.”

The advantages of a more inclusive workplace are not confined to the bigger end of town. Accordingly, the Law Council of Australia has smaller firms in its sights. In March, it launched an accredited continuing professional development workshop on unconscious bias, partly aimed at reaching those firms.

“We know it’s hard for smaller practices to spend significant amounts on training,” Price says. “And, if there’s just one or two lawyers in the firm, they might ask why they need to worry about these sorts of things.”

But, he says, the issue of diversity goes beyond staffing to networking. “It’s about making better decisions around my networks, where I go to look for work, how I assess a person as a worthwhile prospect for me, whether as a networking prospect or as a work prospect,” Price says.

“The research shows people with more diversity in their networks do better financially. It can also help you make generally better decisions around how a person assesses information and reaches a conclusion based on that information. Understanding and awareness of unconscious bias will help make that person a better lawyer and better able to make critical business decisions.”

McLeod also emphasises the broader benefits of being aware of our cognitive processes.

“I think that we can transform the profession to one that is truly inclusive and representative of our community,” she says. “These programs are win-win for the profession all round.”

Top tips for dealing with unconscious bias

Danielle Kelly, head of diversity & inclusion, Australia and Asia, at Herbert Smith Freehills

“A key thing is the pause. Rather than going straight to your gut reaction, take the time to pause.

“I don’t think you can get rid of your unconscious biases. I think you can become aware of their impact but you can question your decisions more.

“As much as possible, make decisions in teams. A peer group is much easier to challenge someone else than it is to challenge yourself.”

Joshua Price, director of innovation and business development at Symmetra

“Accept that you have unconscious bias because you can’t do anything about it if you don’t believe it.

“Question your first impressions. I often say ‘Don’t use your intuition to judge your intuition’. Your intuition is fine, but can I put my decision in writing in a way that would convince another person?

“Awareness isn’t enough. Because it’s an unconscious process, you have to have some structure and tools to make sure you ask yourself the important questions at each stage in making a decision.”