Hidden prejudice: Tips for tackling unconscious bias in your law firm

"Discriminatory behaviour takes many forms, but all involve some form of exclusion or rejection," according to the United Nations.

Research conducted in various institutions around the world has found that people often make choices at work which
subtly discriminate in favour of or against people with certain characteristics. These choices are made at an unconscious level, known as unconscious (implicit) bias or hidden assumptions.

Kings College London describes unconscious bias as "the biases we have which we are not in conscious control. These biases occur automatically, triggered by our brain making quick judgements and assessments of people and situations based on our background, cultural environment
and our experiences".

Unconscious bias can appear in a variety of ways. For example, a white male may be favoured for a promotion over a black female, despite both being equally qualified, or a middle eastern colleague may be less involved in high-profile projects without being given a substantial explanation. Concerns about these subtle forms of unconscious
bias raised by those directly involved are often either dismissed or negated.

'Innocent' questions

A common way in which unconscious
bias appears is when people raise opinions or ask questions based on assumptions, without taking into consideration the effect of their
behaviour on the recipient.

In one recent case, Mary, a senior manager, demonstrated a racial and religious bias against a Sikh member
of her team, Manpreet. He had raised
a formal complaint against Mary as she
had asked him, in an open-plan office,
why he needed to wear a turban. Mary had queried whether it was essential for Manpreet to follow the tradition of his culture and religion, given that he was born and brought up in the UK.

Mary was mortified that Manpreet had considered it necessary to raise a formal complaint about this, especially as she often stated in team meetings that she strived to be non-judgemental. Her rationale for her comment to Manpreet about his turban was that she would consider it unusual to find a Scot wearing a kilt in Malaysia and also because, in France, the law does not allow people to display religious affiliations through their attire.

Mary said she was being 'non-judgemental' and that she was merely curious about Manpreet wearing a turban but, by starting their conversation with "why do you need to..." Manpreet felt that he had to justify wearing a turban. Mary's question, asked out of interest, was perceived by Manpreet to be an insult.

'Judgemental' is defined by Collins English Dictionary as "inclined to make a judgement, denoting an attitude in which judgement about other people are made". One thesaurus notes that the synonyms for judgemental are all negative in connotation and include 'condemnatory', 'self-righteous', 'censorious' and 'critical'.

Intrusive and intimate questions are sometimes asked of those perceived to be 'different'. These insensitive questions, a mechanism for the questioner to clarify assumptions about the different person, cannot validly be justified by saying "but
I am curious" if offence is taken.

The perception is that, if I am genuinely interested in getting to know my colleague, why can't I ask him how many lovers he has had because he is gay? Why can't I ask my subordinate if she lives in an extended family because she said she had an arranged marriage? Why can't I ask my manager with hearing problems what it is like to not be able to appreciate music?

But, does the fear of being perceived or labelled as judgemental mean that people cannot or should not ask questions of each other or share opinions? If a person's opinion is formed by their values, beliefs and culture, the declaration of this opinion, considered as acceptable in one culture, could be seen as offensive by others from different cultures.

In essence, these sorts of comments and questions can trigger negative emotions in the recipient. When opinions which are based on limited facts or knowledge are raised, it is often with the unspoken expectation that these opinions will be clarified by the recipient, irrespective of whether or not they want to do so.

It should be noted that forming an opinion is not necessarily being judgemental; the judgemental element implies a condemnation of the other, an expectation that others should either live
by your chosen standards or explain
(or even justify) why this is not the case.

Practical considerations

Identifying unconscious bias in the workplace is one step in the right direction. The key to managing it is to take proactive measures where concerns are acknowledged, acted on and robust solutions are put in place. The following ten steps can help to ensure that unconscious biases do not fester in the background.

1. Speedy and appropriate action

Managers should engage with staff at all levels and nip instances of unconscious bias in the bud as quickly as possible. If managers recognise that damaging comments have been made which have had a detrimental effect on the recipient or on bystanders, they should take speedy and appropriate action. They should (informally) investigate exactly who was involved and the impact on the individuals and the team in general.

Through dialogues with colleagues, managers can establish whether the comments were made deliberately to provoke or were said out of ignorance.

In one instance, a male colleague had referred to a female colleague as 'girlie'. Although this comment was made in jest, the manager considered it necessary to bring to the male colleague's attention that these types of comments did not sit well with the organisation's values around equality, diversity and inclusion.

2. Monitoring and evaluation

Set up a diversity audit to establish whether there are negative effects of unconscious biases in the firm's performance management system, particularly in appraisals, disciplinary processes and promotions.

Studies show that managers assess members of their own racial group more highly on performance evaluations than employees of other races.¹ Other studies show that people are less likely to believe factual information when it is delivered
by someone whose accent is different
to the dominant accent.²

3. Recruitment and selection

Considerable care needs to be taken during the recruitment and selection process to ensure that relevant, valid and reliable information is taken into consideration. There are a number of studies which raise concerns about unconscious biases emerging in the following situations:

• when recruiting teams are under time pressure to sift through large qualities of applications;

• when there is ambiguity and a lack of a simple formula to distinguish the good applicants from other candidates; and

• when there is minimal accountability in the recruitment process - little justification or explanation is required when distinguishing potential candidates from those who are considered unsuitable.

Studies have shown that recruiting managers with higher implicit reference
for whites compared to non-white candidate spend more time looking at the positive information on the CVs of white candidates and less time looking at the positive information on the CVs of
non-white candidates.³

4. Work allocation

In-group bias can compel managers to align with colleagues who are most similar to themselves. Colloquial terms associated include 'like for like', festering a 'mini me' culture, which can influence the allocation of high-profile work to colleagues who look, dress and behave like them.

When allocating work, it is important for managers to explain in detail their actions and intentions, and for their teams to understand that the logic for the work allocation is based on the recipient's experience and skills.

5. Professional conduct

Taking into consideration that the general behavioural requirement is professionalism, all conversations conducted at work - whether among colleagues, with stakeholders or with clients - should be conducted within the frame of fair treatment, respect and dignity.

6. Positive reinforcement

Many studies have shown that distributing positive images and stories of minority groups can help to combat hidden
biases.⁴ Good diverse representation has been proven to help reduce levels of unconscious bias in the workplace. By encouraging inclusion, either through images or other forms of representation, stereotypical concepts around differences will be reduced.

7. Fair and inclusive

Every person should be treated as an individual. By involving colleagues for
their skills and experience, as opposed to what they are perceived to represent, managers can create a fair and inclusive working environment.

It can also be helpful for managers
to reflect on their first impressions of
a colleague, as this can help to evaluate any stereotypes and establish whether there are any damaging effects as a result of their stereotypes. Managers and their teams may also find it beneficial to take an implicit association test to determine whether they have unconscious biases about race, gender or sexual orientation, for example.⁵

Studies have shown that unconscious biases, judgements and assumptions can have a lasting negative impact on the people concerned.⁶ By proactively taking action to combat these preconceptions, both through personal reflection and direct interaction, it is highly likely that strong robust working relations will emerge.

8. Talent management

The firm's approach to talent management should also be considered. Instead of looking at those who have never made a mistake, identify those who have made mistakes and learned from them. This will provide a better perspective of their working style, their ability to deal with situations in a crisis and how they manage their work. The process will also reveal other skills they have that may not have been considered, such as using their initiative, thinking outside the box, and so on.

9. Social networks

Firms should also encourage staff to widen their business and social networks to include people they may not normally socialise with. This will broaden their view of other cultures and nationalities.

People from the same minority groups - whether race, religion, gender, sexuality or disability - will often spend more time together. Actively engaging with colleagues who are not usually a part of their social group will enhance team members' awareness of diversity and the value
of inclusion.

10. Board diversity

Diverse board representation provides a top-down understanding of the importance of managing unconscious biases and promoting fairness and equality.

In one small charity, the board members consisted of white males, which did not instil confidence in the staff members who represented clients who had experienced domestic abuse. Staff thought that the majority of board members were naïve about issues of discrimination and that
they did not have sufficient understanding of racism and sexism.

Greater awareness

Unconscious bias or unconscious discrimination plays a significant role in decisions around recruitment, promotion, appraisals and other tribulations in the workplace. In moments of decision making, whether in recruiting staff or in everyday work-based interactions, the realm of this discrimination needs to be taken into account by board members, the senior management team, division heads and other colleagues. Even well-meaning individuals who profess egalitarian values may hold implicit biases that result in negative employment consequences for minority groups.

Unconscious bias has been labelled as a disease, an equality opportunity virus; organisations need to be proactive to mitigate its effects. As the late Nelson Mandela said in his birthday speech, "it is in your hands to create a better world".

Sneha Khilay is director of Blue Tulip Training (www.bluetuliptraining.com) and author of the forthcoming Diversity Dilemmas in the Workplace.

Endnotes

1. See 'Effects of race on organizational experiences, job performance evaluations, and career outcomes',
   J.H. Greenhaus, S. Parasuraman, and W.M. Wormley, Academy of Management Journal, Vol. 33, No. 1, March 1990; 'A meta-analysis of ratee race effects in performance ratings' K. Kraiger and J.K. Ford, Journal of Applied Psychology, Vol. 70 Issue 1, February 1985; and 'Rater-ratee race effects in developmental performance rating of managers', M.K.Mount, M.R. Sytsma, J.F. Hazucha, and K.E. Holt, Personnel Psychology, Vol. 50 Issue 1,
   March 1997

2. See 'Why don't we believe non-native speakers? The influence of accent on credibility',Shiri Lev-Ari, Boaz Keysar, Journal of Experimental Social Psychology, Vol. 46, Issue 6, November 2010

3. See 'On the nature of prejudice: Automatic and controlled processes', J.F. Dovidio, K. Kawakami, C. Johnson, B. Johnson, A. Howard, Journal of Experimental Social Psychology,
   Vol. 33 Issue 5, September 1997

4. See 'Proven strategies for overcoming unconscious bias in the workplace', CDO Insights, Vol. 2 Issue 5,
   August 2008

5. See, for example, https://implicit.harvard.edu/implicit/

6. See 'Implicit attitudes and beliefs adapt to situations', N. Dasgupta, Advances in Experimental Social Psychology,
   Vol. 47, 2013