Eradicating unconscious 'racial bias

W hen George Floyd, a 46-year-old black man, died on a Minneapolis street on 25 May 2020 – with a white police officer kneeling on his neck for nearly eight minutes, ignoring his pleadings that he could not breathe – the shockwaves resounded far beyond the US. 

Protesters flooded the streets of cities across the globe in support of the Black Lives Matter movement. Meanwhile, industries and professions worldwide have been asking themselves uncomfortable questions about whether racial bias exists in their sphere – and what they can do about it. 

The UK legal profession is no exception. Stephanie Boyce, Law Society deputy vice president, reports that the Society has had a large number of inquiries from firms and lawyers in the wake of Floyd’s death. “They have reached out to us and said, ‘we want to talk about this – we realise it’s time for change’,” she says.

Boyce, who is set to become the Law Society’s first black president next year, is determined to capitalise on this new momentum. “The legal profession is not immune to racism”, she states. “If you look at the statistics, there is work to be done.”
The Times reported in June that while there are 756 partners in the five ‘magic circle’ firms, only five are black. And although black people make up 3 per cent of the UK population, only 2.1 per cent of solicitors are black – dropping to 1.1 per cent in the City.

There is no doubt that racial bias exists within the profession. But is it conscious or unconscious? Leena Savjani, partner at Irwin Mitchell who co-leads the firm’s race network, suggests that it is “probably a mixture of both”. She says the examples of conscious bias she’s heard about in the wider profession have tended to be where people “probably just need to be educated” – in relation to the terminology they are using, for example. 

But while conscious bias might be easier to call out and rectify, unconscious bias can be a lot harder to eradicate – because you’re not even aware your actions are affected by it. To their credit, many law firms, particularly the larger ones, are now realising the scale of unconscious bias within the profession and taking steps to address it.

A biased brain

Sasha Scott, founder of Inclusive Group, has been teaching lawyers and other professionals about unconscious bias for more than 20 years. She describes unconscious bias as “our automatic, instinctive responses; the spontaneous judgements we make”. It is steeped in evolution and our “tribal” instincts, she explains. We feel safer with our own tribe.

According to Scott, there are more than 150 types of unconscious bias. But when it comes to lawyers, she can point to a top three. In the number one spot is “affinity bias” – which boils down to, ‘I like people like me’. 

Second, “confirmation bias” – where a lawyer subconsciously looks for evidence that they are right and ignores facts that suggest otherwise. Third is “expediency bias” – ie ‘I need this done quickly, so I’ll pass it to a safe pair of hands’.

While there isn’t much specific research into unconscious bias in the profession, a 2017 US study, Written In Black & White by Dr Arin N Reeves, is revealing. It found that when supervising lawyers were reviewing a piece of writing they thought was written by a black lawyer, they found more of the deliberately inserted errors than when they thought it had been written by a white lawyer. 

“When expecting to find more errors, we find more errors”, the study concluded. “That is unconscious confirmation bias.” 
Scott adds that while this study was based on a small sample, lawyers should take note of it – given that accurate drafting is an essential part of the job. “When the lawyers were told the author was white, they didn’t see the mistakes. It just shows how we are far less rational than we think we are,” she observes.

Cause and effect

One of the most obvious areas where unconscious bias can be dangerous is recruitment, where it can stop law firms choosing from the full range of talent. It’s always easier to ‘de-bias’ a process rather than a person, so firms are increasingly turning to techniques such as contextual blind recruitment, through which names, ethnicity and even university are stripped out before candidates are chosen for interview. But this alone will never be enough. 

“The real issue is the power of the interview”, asserts ex-employment lawyer Victoria Lewis who is now chief executive at training company Byrne Dean. “You need to make sure there is a good objective panel, and that there is a robust challenge to any assumptions that are being made. Make sure decisions are not being made at the end of a long day [of interviews] when people are tired and hungry, and their processing skills are not as good.”

But unconscious bias does not simply pop up at key moments such as interviews or '¨partnership promotion rounds. It’s always there in the background; and its effects can be subtle but build over time. Lewis points to the many moments in a lawyer’s career that could be described as “career enhancing” or “career diminishing”. 

Say a partner needs to select a young lawyer to attend a client ‘do’. The partner has a good relationship with the client and they want to pick a lawyer who they think the client will also like – with the right kind of interests, communication style and characteristics. The partner will tend to pick the lawyer with whom they have the greatest sense of affinity. Someone a bit like them. That in itself will not make or break a career, but it allows the lawyer to build up that rapport with the client that comes from social situations.

“Affinity bias is the opening”, explains Lewis. “You don’t promote someone based on it, but it has warmed you up to a position where you are comfortable, relaxed and authentic with them – and so they will be comfortable, relaxed and authentic with you.”
This affinity bias might be rumbling along in the background without making too much impact, but at around four years’ post qualification experience there’s a change.

“Suddenly the shift starts to happen and the firm is looking for new leaders”, says Lewis. “That’s where confirmation bias comes in. The partner has a choice between lawyer A and B, but they are already warmed up around A – they grew up around Ipswich and have 2.4 kids – just like me. The partner [subconsciously] starts to look for evidence to support the view that lawyer A is better than lawyer B – and devalues the evidence to the contrary.”

This all adds up to an expensive problem for firms in terms of losing talent. “Diversity comes in, but it doesn’t stay”, frowns Lewis. “People leave because they look around at those in senior posts and they can’t see anyone like them. So they think, ‘it’s too hard; there are too many obstacles’”.

Often, senior lawyers with the best intentions can be inadvertently disadvantaging junior staff. The partner who likes to have a weekly inclusive team meeting at 8am is forgetting this choice of time poses problems for those with children or caring responsibilities. Team building activities that are too elite – ski and golf weekends – or that revolve around alcohol can build barriers for those who do not drink or never had the money to learn to ski. 

What are better solutions? “It’s about being creative”, suggests Lewis. “Cookery classes in the afternoon can work well, for example. And I wouldn’t say never involve alcohol but there needs to be a balance.”

Building awareness

As understanding of unconscious bias has grown, firms are increasingly offering their lawyers training on the issue; and there has been a recent surge in inquiries.

Scott warns “you can’t actually train people to reduce bias” and offers “awareness raising workshops”. Where possible, she likes to run separate groups for those at different levels of seniority, because the impact of bias will be different. At partner level, for example, biased decisions will affect the career paths of more junior lawyers. But at business support level, it’s more about developing an inclusive culture and avoiding cliques.

Irwin Mitchell was an early adopter of unconscious bias training. Its line managers are offered voluntary external training and there is compulsory online training for those involved in graduate recruitment, with plans to expand this more broadly. “There can be a misconception that unconscious bias is just about recruitment,” notes Savjani. “But the training shows how it’s relevant all the time. For example, '¨in the day-to-day job in terms of whom you give work to, or speaking opportunities, or drafting articles”. 

Both Scott and Lewis avoid using the term “bias” during their training courses because it puts people on the defensive. “I like to talk about ‘preference’, which is less accusatory,” explains Scott.
She adds: “Make sure your positioning is spot on, coming from the senior leadership team – and they should do the training first”. 

There’s plenty more firms can do to avoid bias and promote diversity. For Trevor Sterling, partner at Moore Barlow – and one of the few black partners at a large law firm – a '¨key foundational plank is to create an environment within the firm where people can talk openly about issues to do with race or other diversity matters. 

“There’s a discomfort for employers, particularly around race,” notes Sterling. He adds that equally, an employee from an ethnic minority who has, perhaps already had to culturally contort themselves in order to fit in, could also be feeling uncomfortable.

“The first step is not to come up with all these different reforms”, asserts Sterling. “It’s to find a safe space, and in that safe space, the employer can listen to the employee and the employee can speak. Then you can take steps to adjust things structurally.”

Sterling’s firm has a diversity committee that links directly to the leadership. “We have empowered the committee to create that space,” he says. 

Diversity networks are also helpful. Irwin Mitchell, for example, has a number of national networks covering race, gender, sexuality, social mobility and disability, with regional groups. The leader of each national network sits on the firm’s diversity and inclusion board, led by the firm’s chief people officer who is on the executive board of the firm. 

“Firms must lead from the top and feel comfortable having discussions about race,” adds Boyce. “And BAME lawyers must be at the centre of these discussions.”

Testing times

What effect has the pandemic had on diversity and inclusion? In the “first stage” of the crisis, says Lewis, there was a lot of “connectivity”. Although lawyers were suddenly working separately, there was a great effort to keep everyone feeling included; and seeing one another in their home environments – with unruly children and animals forming the backdrop to many Zoom calls – added to that sense of community within firms. 

“But inclusion is most under attack now, in this second stage”, she warns. “Some people are returning to the office; some aren’t. People are going back on a rotational basis. There might be a lead partner who is surrounded by some people, but not having that humanising moment with someone else. It puts inclusivity under real strain.”

She adds: “Lots of firms have worked very hard trying to push inclusivity during the pandemic. But now there are a lot of people who are feeling worried, perhaps returning from furlough, feeling sidelined or devalued.”

Going back to the tribal roots of unconscious bias, Scott adds that when we’re feeling less safe our biases increase. “There’s a bias spike in times of panic”, she warns. “This pandemic has blown our minds, and we don’t really know when it will end. In this situation, diversity will suffer because we tend to just look out for people like us.”

There are positive signs, however, with some firms recognising the need to keep a sharp focus on inclusivity. “Short interventions such as doing training exercises that drive collaboration and inclusion are a good way of gluing people together, and we’re seeing a rise in this,” Scott reports.

But while the pandemic risks having a negative effect on diversity issues, the global outcry against racism following George Floyd’s shocking death has proved a powerful and positive force for change.

Sterling has been watching the mobilisation of millions of people across the globe and is optimistic that this time, we will see change. “The legal profession is all about protecting the rights of individuals. The profession should be taking a lead on this. If each and every one of us takes this on board properly, then society will begin to change.” Or as Boyce succinctly puts it: “There has been enough talking. Now it’s time for action.”  

Rachel Rothwell is a freelance journalist

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