Mcle Article: Elimination of Bias: You Should Try to Change What You Should Be Able to See

• Publication year: 2019
• Author: By Angelica Sciencio

MCLE Article: Elimination of Bias: You Should Try to Change What You Should Be Able to See

By Angelica Sciencio

Angelica Sciencio practices business immigration and family law with Sciencio Law Group, APC in San Diego, CA. She is the chair of the Committee for Diversity and Inclusion of the San Diego County Bar Association, past-chair of the Diverse Women's Committee of the Lawyers Club of San Diego and is interested in racial and gender inequality issues.

The American Bar Association's most recent study and report on bias in the workplace, released in September 2018, shines a light on the impactful effect implicit bias may have on a lawyer's career, opportunities for advancement, attrition and, inevitably a practitioner's psyche and self-esteem. The report highlights the appalling (yet not surprising) numbers and disproportionate rates that women, and particularly women of color report bias in the profession.

The published executive summary of the study, aptly named "You Can't Change What You Can See: Interrupting Racial & Gender Bias in the Legal Profession,"¹ provides a short overview of the report results. The study was compiled based on the answers of 2827 respondents and compared reported bias encountered by individuals identified as white male, white female, men of color and women of color. The report indicates that women of color reported encountering biased behavior substantially more often than any other group. In certain instances, women of color reported biased behaviors at a rate of 50% points higher than white males.

The "mistaken identity" scenario is a classic situation where substantially higher bias is reported by women. In the study, 50.85% of white women and 57.52% of women of color reported at least one instance when these lawyers were mistaken by a court reporter, legal assistant and even part of the janitorial staff.² Let that sink in: 57.52% of female lawyers of color reported at least one instance when they were addressed by individuals whose first assumption was that they were not attorneys. It is not unreasonable to conclude that suffering under the sometimes subtle, sometimes overt actions based on biases is probably one of the motives that lead women, especially women of color, to leave private law at a rate of more than 80% by their 8th year in practice.³

Parenthood apparently generates pervasive and career impacting biases. All groups surveyed for the ABA study reported high bias rates resulting from the belief that taking parental leave may harm one's career. Interestingly, the report indicates that the "Maternal Wall" affects both mothers and non-mothers, with women reporting high levels of bias towards mothers (who are often perceived as less competent) and non-mothers (who are often expected to work more hours on the job). When it comes to parenthood, white women reported bias at higher numbers than any other group.

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Bias Reported	White Male	White Female	Men of Color	Women of Color
Parenthood did NOT harm perceived competence	80.00	44.48	79.45	51.09
Parental Leave is Harmful to Career	42.42	57.07	47.20	50.00
Nonparents Maternal Wall - Expected to Spend More Time at Work	26.50	48.40	35.00	46.00

The ABA's report discusses the negative impact of bias in the workplace and provides tools to help firms and companies to interrupt these biases. The report consistently and strongly recommends the use of metrics - keeping track of numbers of job candidates, promotions, assignments to see whether bias could be playing a role on the results and using tools to interrupt those biases from affecting the decision-making process.

While we should commend the ABA's efforts to gather, present and interrupt bias in the profession...