Hidden depths: the problem of unconscious bias

During his first year in law school, Ellisen Turner, a partner at Kirkland & Ellis, worked as an intern at a different law firm and was thrilled to be offered a kind gesture by a partner. “He couldn’t attend a US National Basketball Association game and gave me his ticket for a seat in the firm’s luxury box,” he says. However, this memory is a bittersweet one.

“When I arrived, the other partners present assumed I was coming to clean the box and take their drink orders,” he explains, recalling just one of the many examples of bias that, as a black IP attorney, he has encountered during his career.

He adds that, frequently, he finds himself interrupted throughout his presentations at hearings, while his opponent, typically a white man, is allowed to present a lengthy and uninterrupted argument. “I fear that some judges are unconsciously more comfortable interrupting minority and female attorneys,” he says.

Cecilia Sanabria, partner at Finnegan, also recalls an incident when she experienced a biased reaction. “I was an associate travelling to a deposition, and when the defending attorney arrived, he asked if I was the court reporter,” she says.

“It was clear I was not based on where I was sitting and the materials I had with me, but he still asked—I often wondered what made him draw that conclusion, maybe the fact that I look younger than I am, maybe the fact that I am a woman in IP, maybe the fact that I am a Latina,” she says.

Bias and decision making

The concept of implicit or unconscious bias was first defined by psychologists Mahzarin Banaji and Anthony Greenwald in 1995. Put simply, this bias occurs when we unconsciously form social stereotypes about certain groups of people and make judgements or decisions about them on the basis of our own deep-seated thought patterns, assumptions or interpretations.

Consequently, these types of bias can affect hiring strategies and promotions in the workplace. Louise Ashley, senior lecturer in organisation studies at the Royal Holloway, University of London, explains: “It is often suggested that recruitment takes place in relation to objective measures of merit alone, but in fact hiring is culturally embedded. That means that the context, history and tradition can also play an important role, including informing our assumptions of who fits where.”

And a failure to tackle the adverse effects of bias can lead to a worrying lack of diversity in leadership positions. Last year, the National Association for Law Placement study, the 2019 Report on Diversity in US Law Firms, found that only one in four partners in US law firms are women and less than 10% are people of colour. Women of colour remain the most underrepresented of all, with Asian women comprising 1.46% of law firm partners, Latin American women making up 0.8% of law firm partners, and black or African-American women comprising 0.75% of law firm partners.