by Marcy Ford
Trott Law, P.C.
USFN Member (MI, MN)

Unconscious biases, also known as implicit biases, are the underlying attitudes and stereotypes that people unconsciously attribute to another person or group of people that affect how they understand and engage with a person or group. Unconscious bias is different than structural or system racism, but it is just as damaging in discriminating against a person or group. It may be even more damaging when you consider that unconscious bias is hard to prove, difficult to measure, and many people are unwilling to acknowledge that they have a bias.

Just like a lawyer (that may be a bias!), I need to deliver a waiver clause. I am a white, middle-aged woman writing an article about a topic which is important to me, but one where I am absolutely part of the problem. I have biases, some that I acknowledge and am okay with, such as my bias in believing that Michigan Wolverine fans are far superior to Ohio State Fans.  I have some biases that I acknowledge, and I am working on, and some that I am not even aware of – at least until one of my children points out that I have put my foot in it. While later in my life than I would wish, I have been working for about two years with a small group to actively become aware of my biases, take ownership of them, and then work to change those that impact my work, my social network, my relationships, and all those that happen to be part of all of those groups. It is a work in progress that I expect will never end because these biases are ingrained, built over several generations, passed down like grandma’s pierogi recipe, and rarely acknowledged or discussed.

While unconscious bias in your personal life may lead to a less interesting existence, unconscious bias in the workplace robs worthy individuals of opportunity, decreases the diversity and richness of the work environment, and may result in decreased revenue where the marketplace demands not just equality, but equity in the ranks and in leadership.  If, as a business owner, I do not acknowledge and eliminate my unconscious bias there will be a direct impact on both hiring and retention. When looking for outstanding candidates to become associate attorneys and/or future partners and I look only to my former university, which is predominately white, get recommendations from my friends, who are predominately white, and advertise in a newspaper whose readership is mostly suburban, I have engaged in a form of unconscious bias known as affinity bias.

I make the presumption that because a candidate has similar background and experiences as me and knows people, I know that they will fit into the organizational culture and do a great job. By my unconscious biases I have eliminated other qualified candidates from even applying for this position - others that would add diversity, bring different ideas and experiences to the table, and be perhaps even better prepared for the difficult work we do.  The seemingly innocent decisions that were made on where to find candidates eliminated almost any opportunity to draw a diverse candidate pool, let alone hire someone who looks and thinks different than I do. Likewise, when looking at retention of a diverse workforce we must consider what factors we are utilizing for promotion and leadership opportunity. Are employees being mentored by individuals who value the skills and experience that the diverse employee/attorney brings to the firm? Have we allowed employees the ability to structure their schedule such that they can participate in special projects, social engagement opportunities, and networking? For example, parents, especially single parents, may not be able to participate in early morning or evening activities. If we schedule the majority of activities that foster leadership development during those times, we will have limited the growth and contribution of those employees and likely find that they will quickly be looking for another employer who will better foster their individual development.

There are many common conscious and unconscious biases in the workplace. Ageism, racism, gender bias, beauty bias, and name bias, are a few unconscious biases to be aware of and actively work to correct. In an interview, it would be prohibited for the interviewer to eliminate a prospect because the applicant is black or brown. But frequently a first or last name on a resume can at least suggest that the candidate is of a specific racial or ethnic group. Is that person less likely to even be granted an interview, thus eliminating opportunities for career advancement, economic security, and family stability?  The answer is yes. Some studies suggest that white names received 50% more callbacks for interviews than African American names and that Asian names were around 30% less likely to get a callback. 

Eliminating unconscious bias takes work. The first step is to acknowledge that we all have these biases.  Step two is to accept that the biases have a mostly negative impact on the person or group that is being assigned the stigma associated with the bias and therefore it is important to eliminate the unconscious biases.  Step three is to begin working towards the elimination of the bias. They cannot and should not be ignored. In the workplace examples above, the employer could activity solicit resumes from diverse colleges and universities, such as a historically black colleges and university, and not rely on referrals from personal relationships with people of similar characteristics.  Additionally, to eliminate name and personal identity bias applicant applications could be scrubbed of personal information through a numbering system or a third-party unbiased person.

Recognizing and eliminating implicit bias in the workplace is work, but it is necessary work.  To learn about some of your own biases I encourage you to take the Harvard Implicit Association Test (IAT) at implicit.harvard.edu.  It is possible you won’t like the outcome, but if we, both individually and as a society, do not recognize the damage of implicit bias and start with ourselves, we will never effectuate lasting change.

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Summer 2021 USFN Report