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Bystander Intervention at Legal Workplaces

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Bystander Intervention at Legal Workplaces

During this session entitled “Bystander Intervention in Legal Workplaces”, the facilitator will cover examples of explicit and implicit bias and discuss what lawyers can do to intervene and promote equity and inclusion where they work.


Ama Karikari-Yawson
Milestales Publishing and Education Consulting


Ama Karikari-Yawson - Welcome everyone to Bystandaer Intervention at Legal Workplaces. I'm your facilitator, my name is Ama Karikari-Yawson, Esq. I'm a Diversity Trainer and Consultant.

So let me tell you what we're going to do. I'm gonna continue to welcome you and we'll have a brief introduction, then we're going to define explicit bias, implicit bias and microaggressions. We're going to then delve into the bystander effect. And then this is the beauty of it, this is what you're gonna come away with upstander intervention techniques before we conclude and close.

So, a little about me. My name is Ama Karikari-Yawson and I'm the Founder of a company called Milestales. Now prior to starting my own company Milestales, which is a publishing company and a training and development company that focuses on diversity, equity, inclusion, and belonging. Before that, I was an Attorney working at Citigroup, I did bond disclosure and all sorts of disclosure at Citigroup, and prior to that, I was at Cleary Gottlieb Steen & Hamilton.

So, now you know more about me and let's get onto the topic. Now, oh oh I was rushing ahead, before getting onto the topic, I like to set the intention. I watched a program, right? 'Cause as a trainer, I have to be trained. And so I did a training program on best practices when engaging in Zoom presentations or any sort of electronic presentations. And this person said, it's always great to set the intention, and I thought that was really powerful, and since then I've been doing it. So what is the intention? How do I want you all to feel as participants? I want all of you to feel as if we are in this journey towards diversity, equity, inclusion, and belonging together. I want to set an intention in which we are going to have grace with ourselves and each other, that we're learning, but we're not just learning so that it's in our minds, we're learning because we want to apply it, it's learning for the sake of application. It's learning for the sake of cross-cultural understanding. I want you to leave here with tools for positive change, and I want you to have confidence afterwards in your communication. I don't want you to stop communicating 'cause you're afraid of saying the wrong thing, I want you to have a little more confidence in your communication and especially I would like you to have confidence in your communication because we are setting a tone of humility and grace.

All right, so let's get onto our definitions. So first definition, explicit bias. So explicit bias is really what most people think about when they think about bias. When most people are thinking to themselves, oh my goodness, what type of horrible behavior is that? This person is so biased, this person is so prejudiced. Many people are thinking about explicit bias, So for example, the assertion that blacks are intractably and probably biologically inferior in intelligence to whites and Asians, that statement is in the "Bell Curve." The book called the "Bell Curve," that's an explicit bias, it's not implicit, it's not subconscious. The authors very consciously say, I believe that black people are probably biologically inferior in intelligence to whites and Asians. Explicit bias, and many of you would hear this and say, oh my goodness, that is terrible, how could anyone write that? I mean, humanity is so varied and diverse and we all have intelligence regardless of our color. Most of you would say that at least you would say that externally on a conscious level.

Let's look at some more examples of bias, we have from the KU Klux Klan website and the KU Klux Klan probably is the poster organization for bias and prejudice and racism and all other sorts of isms. But if we go to their website, they say on their website, we support a national law against a practice of homosexuality, which would include the repeal of gay marriage laws. Again, very explicit, they are not mincing words here. They would like a national law against a practice of homosexuality, they want to repeal gay marriage laws, they privilege heterosexual marriage and heterosexual relationships above same sex marriage and same sex relationships. Again, very, very clear. This is another quote from the Ku Klux Klan website. "America is being overrun by illegal immigrants mostly from non-white countries. Immigration should remain open to all white Christians throughout the world." Wow, again, very plain. They do not want immigrants who are non-white and non-Christian, no beating around the bush. They're not engaging in any covert behavior here. They would like a country, which is only open to white Christians. So that's explicit bias. And many of us hear these statements and we say, oh my goodness, how could people think like this in 2022? What is wrong with those people? And we pat ourselves on the back because we say we are open minded, we are progressive, and those sort of thoughts have no place in our minds, no place in our hearts.

However, I'd like all of us to just challenge ourselves for a moment to say, although we may not have those explicit biases, all of us unfortunately have implicit biases, all of us have implicit biases. Bias in general, just surrounds unreasonably hostile feelings or opinions about a social group or prejudice. Now implicit bias these are subtle and unconscious hostile feelings, attitudes, or beliefs. They're not on the conscious realm, they are subconscious. And very often these biases are held by individuals, organizations, and institutions and their biases towards an entire individual group. Very often, the biases are the result of exposure, consistent exposure to stereotypes. Stereotypes are defined as widely held with fixed and often oversimplified images or ideas for particular type of person or thing.

So, think about some stereotypes, right? Women are emotional, it's oversimplified stereotype, there are certainly women who are not very emotional, that's for sure many of us know those sort of women. But if there might be a stereotype about how women should be, how should a woman behave, a stereotype about, "The way women are," the idea would be women emotional, women illogical sometimes there's that stereotype, they must be maternal, they are constantly in their feelings and not in their logic, stereotypes. So now this is the thing about these stereotypes, that lead to very often the implicit bias, the stereotypes and the implicit bias, biases that people hold often do not coincide with declared or conscious beliefs, meaning this, I may say one thing, I may say, I believe that women are just as logical as men and just as capable of leadership as men. However, my actions in who I promote, who I call on, who I assign certain tasks, show that I really do have a belief that men are more capable, it happens every day. Implicit bias is often revealed through actions or behaviors rather than words because we ourselves are not aware of the bias, we ourselves have no clue until we catch ourselves that we are harboring these ideas. Now, how do we catch ourselves? Very often, we catch ourselves when it's brought to our attention because of something that we say or do.

So, our goal here is to talk about the legal environment and in the legal environment, and in many of your work environments, these biases will come out through microaggressions. So what are microaggressions? Microaggressions are brief and commonplace daily, verbal behavioral, and environmental indignities, whether intentional or unintentional that communicate hostile derogatory or negative racial gender, sexual orientation ability or religious slight and insult to the target person or group. This is defined by Derald Wing Sue who wrote the book, literally wrote the book of microaggressions. There are three types, microassault, microinsults, and microinvalidations. Now, this may sound far removed from your life. But when I go into some of the examples, trust me, you are going to relate because most of us have experienced microaggressions before.

So, let's talk about the first one type of microaggressions. The first one we're gonna talk about are microinsults. So microinsults are interpersonal or environmental communications that convey stereotypes rudeness and insensitivity. Here are some examples. So I'm a black woman and maybe I am at work, I'm an attorney. And someone says to me, "Oh my goodness, you are so articulate." Now on the surface, it may sound like a compliment, the person's giving me a compliment, the person is saying, I'm so articulate, but it may indeed be and in many cases is a microinsult because the person is acting shocked or surprised that I'm articulate potentially because of stereotypes that the person has surrounding black women. Another example of a microinsult, you are only here because of affirmative action, you are only here because of affirmative action.

And I have an actual anecdote to share about that one. So I went to Harvard undergrad before going to University of Pennsylvania for law school and Wharton for business school. So when I was at Harvard undergrad, we had the places that we lived freshman year were called entryways. So I lived in an entryway in Matthews and we had a meeting for our entryway, entryways like a door, and you can only get to these rooms through that door, and everyone who lives basically at your door is in the same entryway. So we had an entryway meeting and it was just a general meeting general conversation, and I was speaking and a person who later became a friend, his name was Mike said, "Oh my goodness, Ama whoa, you are actually so intelligent, had we not had this entryway needing for me to hear you, I would've thought that you were just here because of affirmative action." Microinsult, on one level, someone will say, that's a positive, he's saying that you're intelligent, he's saying that he was wrong about you. Why is that an insult? It's an insult because the person is saying that any one of my color or anyone of my gender or anyone at the intersection of my race and gender is only here or only at Harvard because of affirmative action.

Now imagine how insulting this comment was, right? Because even if affirmative action exists, do people think that universities just go and pick any old person from anywhere? Did Mike think that that Harvard University just went to Queens and said any black girl between the ages of 17 to 18 hop on on the truck, the Harvard truck and come? Is there a belief that there's no vetting that there's no qualifications? And I tell this story all the time, because in order to get there, I used to study all the time and drink Mountain Dew to stay up and study and I would drink Mountain Dew, and then I would fall asleep. Now you can imagine what happened to me. I got cavities, 18 cavities, and I'm on like my third or fourth root canal, oh my goodness. Because I am facing the brunt 20 years later of all of that Mountain Dew and all of those cavities. So for me to know what was going on in my mouth and for me to be there looking at Mike with the 18 pinhole cavities, from drinking Mountain Dew, studying for my AP exams and my IB exams and whatnot, it was so insulting, microinsult. Okay, if someone says to someone with curly or kinky hair, you're hair does not look professional, microinsult. If someone says to a person of Asian ancestry or Latin American ancestry, oh my goodness, you speak English so well, you speak English so well, assuming that English is not that person's first language, microaggression, microinsult. Someone says to a woman at an organization in a very sly way. Well, what did you do to get here? Insinuating that the person got to the institution by sleeping with a man instead of through working, microinsult, microinsult.

I'll give you another famous example, President Joe Biden before he was president was discussing then candidate, President Barack Obama, well then candidate Obama, not president yet and said, oh my goodness, you have this man from Illinois who is bright and clean and articulate, the first time this is happening, a black man who's bright, clean, and articulate running for president that storybook man, microinsult. On the outside, it sounds like it's a compliment, he's bright, he's clean, he's whatever, he's good looking, he's articulate. But it is really an insult because President Biden was saying, it is so shocking to me, the black man who's bright and clean and good looking, etc, and articulate. It's an insult, it's an insult to an entire community of people, an entire demographic of people, microinsult. And now that I'm telling you this, I'm sure you are saying to yourself that you've experienced it before. Most of us I think have experienced it on some level. Okay, so we're talking about the microinsults.

Now the microassaults, these are conscious deliberate and either subtle or explicit racial gender or sexual orientation, attitudes, beliefs, or behaviors that are communicated through environmental cues, verbalizations or behaviors. So, a microassault feels like a gut punch. No one's actually hitting you, but when you see this symbol or when you hear it, oh my goodness, it feels like an assault. So an example might be the Confederate flag for me, for me, this is relative, for me as a black woman. The other day, I took my kids to a 4th of July event in Valley Stream, I live not too far from Valley Stream and they were having fireworks. And I went and I saw all of these trucks with Confederate flags and fear and terror grip me. Now again, I'm telling you this is relative, maybe another black person would not have felt that way. But for me it was a microassault because it symbolized the South and the pro-slavery movement. That is what it symbolized to me. So no one was hauling me off and putting chains on me and whipping me, or making me work in toil in cotton fields for hours and hours, that's assault. And this is an assault that happened over and over and over and over again for centuries. But it was a microassault because that is the imagery that it conjured in me. That is the injury, that is the injury that it caused me. Does that make sense? Does that make sense? Okay, so next another example, if I am any person of color or Jewish person, and I see a swastika in my office, oh my goodness, that is a microassault. No one is actually assaulting me and taking me to a gas chamber, but it is a symbol of it.

And I'll give another example of something that may happen 'cause you may say Ama, we would never see this in a legal environment, why is she giving these extreme examples? But I'll give you an example that might happen. So I, this happened to me, it wasn't in the legal workplace, but it happened in my own community. I went to go register my boys, my two boys for school and the registrar had a Blue Lives Matter wristband on, it felt like a microinsult to me, a microassault to me pardon me, it felt that way because this was at the time it was near the time of Eric Garner and Michael Brown and whatnot. And although of course I stand for police, I want police to do well, I want them to be healthy, I cry every time I hear about a police getting shot in the line of duty, I am with the police and I'm grateful for their work. Seeing the Blue Lives Matter wristband was like an assault because the phrase Black Lives Matter did not require the response in my opinion, Blue Lives Matter. Blue Lives Matter to me was symbolizing, oh my goodness, these black lives don't matter. Blue Lives Matter regardless of the circumstances, regardless how egregious things are, regardless of whether the person was unarmed because these cases that were making the news were all of people who were unarmed. The police officer is always right. To certain extent, that is the way I viewed it, and that's what it conveyed to me, and it felt like an assault and I registered my kids, but then sent them to private school instead. Do you understand my perspective? You may not agree with me, but I'm wondering if you understand my perspective. So those are microassaults.

All right, let's go onto microinvalidations, microinvalidations, communications or environmental cues that exclude, negate or nullify the psychological thoughts, feelings or experiential reality of certain groups, such as people of color, women and people who are members of the LGBTQIA plus community. So there are many nonverbal assault, microinvalidations, many nonverbal microinvalidations. It could be neglecting to include the photos or histories of members of a certain group or failing to acknowledge a commemorative month at law firm or a day that acknowledges certain ethnic groups, that easily happens are verbal. When I look at you, I don't see color, that is a microinvalidation. Our color is our color and that's a part of our identity, it's a part of who we are, no one should be saying that they don't see it, that's a microinvalidation. Another example in a legal environment might be, you are at a legal environment, you are at work, you're with a group of all women, and you say, bring your husbands and boyfriends to the event. It's a group of all women attorneys and the person organizing says, please feel free to bring your husbands and boyfriends. That is invalidating members of the LGBTQIA community that may have girlfriends or wives, microinvalidation. Some people believe, and I see the argument that this is the worst microaggression of all, because you are invalidating the person's existence. Does that work? Does that work for you? I hope that you're understanding.

Okay, implicit bias just implicit bias often comes out in recruiting very often comes out in recruiting. Okay, so here are some examples. There's a whiten resume study by Katherine DeCelles and company. In this study basically employer callbacks for resumes that were whiten and felt much better in the application pile than those that included ethnic information, this is what the study demonstrated. So basically they took a pile of resumes. For certain pile of resumes, they left the ethnic details intact. What is an ethnic detail? An ethnic detail could be a name, so if someone's name is Katherine Choi, Choi is thought to be an Asian name, and so that would be considered an ethnic detail for the purposes of this study or member of the Asian and Pacific Islander Club, member of the Asian and Pacific Islander Bar Association. Those are all ethnic details. If the person's name was Jamal Jackson and people thought, okay, Jamal is a name that is more common in the African American community and that would be changed. And if it said, member of the Black Law Students Association, that would be taken out.

So basically the resumes were scrubbed, they had a pile that were intact and then a pile that was scrubbed of ethnic details. So Katherine Choi became Katherine Smith. Jamal Jackson became Jackson, or pardon me, let's say John Jacks. And so they change a name, they change the organizations or affiliations instead of Asian and Pacific Islander Bar Association they're going to say that this person is just a part of the general bar and the person enjoys skiing, they are changing the details. When they changed these details, 25% of black candidates received callbacks from their whiten resumes while only 10% got calls when they left ethnic details intact. Similarly, among candidates of Asian ancestry, 21% got calls if they used their whiten resumes, whereas only 11.5% heard back, if they set their resumes with racial references, very sobering. Because if you were to ask any of the individuals, they would say, oh my goodness, I am into equal opportunity, I'm always interested in candidates of all colors, we think about diversity all the time and we value diversity, however, although that was the lip service, these same individuals like the resume more and would give callbacks to the whiten resumes over the ethnic resumes.

This is another study that is very illustrative of a similar point about implicit bias in the legal environment, 'cause this happens at law firms and at legal institutions all the time. And this is a job callback study by a late sociologist may she rest in peace, her name was Devah Pager. So, Devah Pager was actually studying the impact of incarceration on job prospects. And so she sent people out and she said, tell them you have a criminal record, tell them you don't have a criminal record. For the most part, all of the participants did not have criminal records. She was at Princeton and used Princeton students. 34% of white candidates without a criminal record, got a callback. 17% of white candidates with a criminal record, got a callback, 14% of black candidates without a criminal record got callback, as opposed to only 5% of black candidates with a criminal record.

I want you to think about these statistics. A white candidate with a criminal record had a higher likelihood to be called back than a black candidate without a criminal record, very sobering. So, although this was supposed to be a study about the impact of incarceration on job prospects, it really became a study about the impact of race on job prospects, because race was a greater indicator, very, very sobering everyone, very sobering, a white candidate with a criminal record has a higher chance of getting a call back than a black candidate without a criminal record. And again, if we were to ask all of these individuals, do you discriminate? Do you believe that black people are worse people or worse employees or what have you? They would say no, but their actions show implicit bias. Maybe they assume that the white people who had criminal records just made a little mistake, just got into a little snap fool, a little tussle, something, you know, completely benign happened. But it seems as if they think that the black candidates are automatically criminal, and that is a stereotype.

Moving on, this is another study that is very, very, very illustrative of bias in the workplace. And this particularly, relates to the legal workplace. Leadership consulting firm, NextGen engaged in the study at a law firm, all the partners received the same memorandum. So NextGen made this, wrote this memorandum, they intentionally put mistakes in it and they gave it to partners at a law firm. 50% of the partners received a memorandum that stated the attorney was a third year African American associate who attended NYU Law, 50% received a memorandum that stated that the attorney was a third year Caucasian associate who attended NYU law. Now this is the thing about it, everyone, it was the same exact memo, the same written type document, the only thing they changed was who they said wrote it. They didn't even change a name. They said the person was Thomas Mayer in both cases, but in one case, Thomas Mayer is black, in one case, Thomas Mayer is white. Can you imagine the exact same memorandum average 3.2 over five under the hypothetical African American Thomas Mayer and 4.10 out of five under the hypothetical Caucasian Thomas Mayer, the qualitative comments on the memorandum were very telling because they said Caucasian Thomas Mayer had great potential, but just needed some polishing, whereas African American Thomas Mayer, they judged more harshly and said they can't even understand why he got into NYU Law to begin with. Again, if we were to ask these individuals, did they have a bias against black candidates or a bias in favor of white candidates or white attorneys or what have you, they would say no. but the implicit values was running rampant.

So, what does this all lead to when we think about diversity, equity, inclusion, and belonging? I think it's important for us to recognize this, with all of these issues, the challenges with respect to callbacks, for candidates who are diverse, the challenge of experiencing microaggressions on the job, such as these sort of comments. What did you do to get here? Snide remarks towards a woman of any race potentially, or you're only here because of affirmative action. You take the challenge of getting in based on what we saw in the callback studies, just even getting an interview, then the challenge on the job with respect to microaggressions. And then the third piece of the puzzle here is the challenge of getting accurate and fear reviews due to all of this bias. You take all of that and you put it together, cumulatively and what do you get? A very challenging environment with respect to retaining diverse talent. And there are many comments about this that we can see.

So these are a few comments, this is one comment that I would like to highlight, this is by a partner at Butler Snow LLP his name is Orlando R. Richmond, Sr. I recall being at a professional meeting and standing with a group of six or seven colleagues from various firms. I was the only lawyer of color in the group, and clearly the oldest. Another lawyer who knew some, but not all of the others walked up and engaged in small talk, introductions were made and hands were shaken. When he finally got to me, he asked, what do you do, are you on the discovery team? I replied, no I'm national lead trial council, he said, oh, you're Rod Richmond, please to meet you, I've been reading your work. This is a lived example. Can you imagine this person is an entire partner, and he was said he was visibly older. Yet the assumption was that he was not a partner, he must be on the discovery team.

So when you look at all of this and God bless his professional, he was able to get to the partner level already. But for many people, these sort of microaggressions would dissuade them from even attempting to be on a partner track. These daily microaggressions take a real toll on professionals of color, it takes a toll on mental health and physical health, and very often the response is to leave, to leave, a recent study by the Center for Talent Innovation revealed that more than a third of African American professionals survey and tend to leave their companies within two years to escape toxic work environments. So now, let's think about this, this clearly is not only happening to people of African descent, it's happening to people of Asian descent, people of Latin American descent, people of women, members of the LGBTQIA community, members of the persons with disability community. There are so many diverse identities for whom these sort of challenges are unfortunately a part of their everyday existence. So now, what do we do about this? What do we do about this? Because all of us are probably in some way, perpetrating in these sort of behaviors but very often we are also bystanders. We are watching these situations happening, we are bystanders who are watching situations of microaggressions unfold on a daily basis. So what does it mean to be a bystander and what does the bystander effect? So, a bystander is someone who is standing by, standing by as these things happen. And the bystander effect unfortunately, is a phenomenon in which someone stands by and does nothing. The term bystander effect was coined the 1960s after the infamous Kitty Genovese incident. So, what is this in incident in case many of you don't remember? I wasn't alive in the '60s, so I had to study it myself.

So Kitty Genovese was a young secretary and bar manager. She was robbed, stabbed, raped and murdered in Queens while returning home from work. On March 27th, 1964, the New York Times printed an article entitled 37 who saw her murdered, didn't call the police. Wow, what a compelling title. 37 who saw her murder didn't call the police. The article, which was later heavily criticized stated that dozens of neighbors witnessed the murder, but did nothing to help, they're hearing this young woman, may she rest in peace oh my goodness. This young lady who had everything to live for, they're hearing her screams, they are potentially looking out their window and seeing this and didn't call the police according to the New York Times headline. Many psychologists began to study such occurrences and named it the bystander effect, key facets of the bystander effect.

Let me tell you the key facets. One, the more witnesses there are to a crime, the less likely any one single individual witness will intervene. So basically, if you are, God forbid, you ever find yourself the victim of a crime. Apparently it's better to have fewer witnesses and not more, the more witnesses, the less likely any individual help, any individual will help. 70% of people would help a woman in distress, if they were the only witness, only 40% would help if there were other witnesses. The diffusion of responsibility allows each individual to feel that it's not up to him, her or them to assist. So all of these people around and they're thinking someone else has done it, someone else is doing it, someone else called, someone must have already called because the responsibility is shared because all of them are witnessing it. This is another facet. There's a human desire to conform to other people's behaviors and to gauge a severity of a situation through the reaction of others. Meaning if you are around a bunch of people and all of you who are witnessing are seeing another person get beat up, if everyone is acting as if nothing wrong is happening, it's human nature for me or you to also feel like it must not be that bad. We think they must know something we don't know, this isn't alarming. In some instances additionally, with being a bystander, there's a fear of retribution. People say, oh my goodness, if I call the police, am I going to be attacked next? If I try and help, will I get hurt? These are some of the key facets of the bystander effect.

And now, although this was coined in the 1960s, the bystander effect has, pardon me, because it was coined in the 1960s prior to cell phones and social media, but now it has an even broader implication because of the proliferation of cell phones and social media. So, let's talk about it in this new era with social media, people may be becoming less sensitive to violent crime because of the volume of violence scene spread on social media. Makes sense, correct? Because if we are seeing violence all around, it's not as jarring anymore, it's not as shocking. Capturing an event, meaning capturing an event on one's phone allows people to gain views and fame. So again, if people are more concerned with videotaping or recording, rather than actually doing something to help that contributes to the bystander effect. Now, people can feel as if they are involved by videotaping it, but they would much rather videotape than actively intervene because the videotape or the recording is going to get them views and fame. Dr. Derek Greenwood explains that sharing a scene that goes viral leads to "Optimal distinctiveness," where this person is really, what should we say? This person is really emerging, emerging is being distinct from the crowd because that's the person who first shared. Recording a scene is seen as helping because recording serves as evidence which is true. But if I were being victimized, I'd rather hope that my victimization would end soon because someone intervene rather than, oh my tormentor will be brought to justice because of the video footage. Okay, recording is deemed safer than physically intervening, although even those who record events have faced retribution.

Okay so this is another aspect of it. The people feel as if, okay, I'm just gonna hide and record, I'm not actually going to intervene, I'm not going to try and save the person or help the person because recording is actually safer. Okay, moving on, so let's talk about factors that will mitigate the bystander effect. So, what is going to make people more likely to be upstanders meaning they actually do something and not just watch? What are some factors that mitigate the bystander effect and therefore increase the upstander effect? So one not being in a hurry. If someone is not in a hurry, they're more likely to help. Being mindful, meaning if the person is not lost in his or her thoughts about some problem somewhere, and the person's actually present rooted in the moment that helps. Specific responsibility and commitment. If at your organization, you've held yourself out to be someone who's very responsible and someone who's very interested in making sure that everyone at the firm or everyone at the organization does well and is treated fairly, that will help you to be an upstander. Clarity of the emergency meaning, if you are getting some sort of indication that there's a real emergency, you would be more likely to act. Being highly and or uniquely skilled.

So after this program, I hope you'll feel uniquely skilled in dealing with it. But you can think about if someone is a bystander and the person know CPR, and another person is choking, the person would feel more likely to be an upstander and intervene because a person has a unique skill. And then we have individuation meaning, you don't see yourself, or you're not seen as a part of one mask, you're seen as an individual with individual responsibilities.

So let's talk about becoming an upstander, right? An upstander is the opposite of a bystander. An upstander is the opposite of a bystander. So, while a bystander sits back and looks, an upstander gets involved, an upstanders is involved when a crime, bullying incident, a microaggression is being committed, the upstander speaks or acts and support, and often on behalf of the person who's being bullied, attacked, or demeaned, this is what we all should aim or aspire to be, an upstander. So these things won't because these things won't change unless someone is actually doing something about it. The upstander often acts when the person being attacked, bullied or demean is unable to defend themselves and may still be processing the situation. The upstander often validates the victim or targets gut feeling that this is not okay. The upstander often overcomes their own discomfort, and ease fear of isolation and fear of retaliation to intervene when others are doing nothing and just going with the flow. Being an upstander at a law firm or corporate environment may feel very challenging because of hierarchy, the culture of being cordial and polite and the importance of job security.

So, I'm glad that you're hearing this and I'm gonna say that one more time, because I do not want you to believe that I'm under the illusion that being an upstander is easy. Being an upstander at a law firm, legal workplace, corporate environment may feel very challenging because of culture of hierarchy, you don't speak back to someone who's a partner or a managing director, or what have you. The culture of being cordial and polite, this is a place where people's emotions are supposed to be in check and intact, and people are supposed to use all of these niceties and be very cordial and polite at all times. And then the importance of job security. Many people might not wanna be an upstander because they feel like, hey, I have a mortgage, I have school tuition, college bills, I have all these bills to pay, they do not want to risk it. So again, I want you to understand, I know that this is not always easy to do, but I hope they will try, I hope they will all try. So, the factors that promote being an upstander are, as I said before, not being in a hurry. If you are in a hurry, it's likely that you're like, I'm not going to intervene in this situation. Being mindful, meaning you are present in the moment and that you're also personally committed to taking responsibility. You've made a commitment to yourself, to your organization, that you're not going to just allow these things to happen without intervening and being a force for positive change.

Now, this is where we are going to need some help, believing it's an emergency. Most of the microaggressions and most of the bullying that you will see will not feel like an emergency because it's not life and death. It is probably rare that you see a life or death situation happening before your eyes in your legal workplace. But I would like to say that it's still an emergency, it is still an emergency. So earlier, and part of why, and this is why I gave you so much context, earlier we discussed the fact that diversity goals are often not being met for all of these issues of implicit bias. We learned about the callback study in which a white person with a criminal record had a higher chance of being called back than a black person. We discussed the whiten resume study, in which basically a candidate had a, a candidate of color who was of Asian or African descent, had a better chance of getting called back if that candidate had a resume that completely, completely, completely took out all racial or ethnic details. This is an emergency, this is a crisis, this is a crisis.

Okay I read the comment from that wonderful partner about his own experience and being mistaken for being in the discovery team. And we discussed the fact that between the microaggressions and the unfair reviews and the inability to get a call back, diversity is a challenge. So I believe that when you see a microaggression at a legal workplace, it is an emergency. It's not a tangible life or death emergency, but the situation in our country is an emergency, and we want all of our organizations and institutions to be more welcoming environment for diverse individuals. Well, believing in your own reputation as a diversity champion. I hope after this session, you will consider yourself a diversity champion. And therefore you believe in your own reputation and say, I am doing something because I am a diversity champion. Cultivating empathy and thinking about how you would feel in the victim or target shoes.

So now I hope that that also helps you, that when you find yourself in these situations, you say, I'm going to do something because if I were in the person's shoes, I would want someone to do something for me. And I hope that after this program, you'll also feel highly and uniquely skilled because we're going to discuss how exactly you intervene in a way that works in legal environments. So, there are many opportunities to be an upstander in legal environments. You have recruiting deliberations. When you feel as if there's bias in recruiting and you're seeing a resume and the person has really great qualities and people are looking over the person and saying, no, no, no, no, no, no, no, and you believe that bias is a main point, it's an opportunity to be upstander. Policy discussions when they're discussing corporate policies and they're discussing, for example, the bathroom policy, and whether there's gonna be a family bathroom as a part of the new way of doing things, you have the ability to be a champion in terms of policy. Strategic planning meetings, when you can say, but what exactly are diversity goals as we strategically plan? You can be an upstander. Reviews and evaluation, do you believe that someone is being evaluated unfairly? And someone's saying, oh my goodness, you know, this person does really great work, but I think that she is too quiet or what have you, you can be an upstander and say, well, maybe we just need to give the person encouragement, and not just write off the person, because maybe being quieter around people who are considered higher up because they are partners, are managing directors or what have you is something that she in her culture is not seen to be a positive thing, and so maybe we can provide additional insight. You can be a champion, when you're reviewing cases to take on as a pro bono attorney, you can be a champion, you can be an upstander. And then of course they're the everyday indignities or microaggressions and you will certainly have ample opportunities, you can be an upstander again.

So let's talk about those microaggressions and how to be an upstander during microaggression. So, if you are the recipient of a microaggression, okay, so I'm gonna give you an example, let's give an example, and I give this example a lot, because I think it's a very easy example. So when I was at Cleary Gottlieb Steen & Hamilton, every Friday we had something called wine and cheese where we would have wine, cheese, crackers, and all those at like, it was like five o'clock or six o'clock happy hour on Fridays. There was a colleague of mine who I saw at Wine and Cheese, and I said, hey, how are you, how have you been? And he says, "Oh, I'm doing great, I just got engaged." I then replied, wow, that's wonderful, who is the lucky lady? That's what I said to everyone, who's the lucky lady, huge microaggression on my part. I assumed that it was a lady, I engaged in what you might say is a microinvalidation, because I have invalidated the fact that he could even be marrying a man, I acted as if that wasn't even in the realm of possibility, and showed my bias or in favor of heterosexual relationships. So this is an example of an implicit bias. If you had spoken to me and said, Ama, do you privilege heterosexual relationships over same sex relationships? I probably would've said no, oh my goodness, I believe in marriage equality, etc. Yet, when it comes time for me to speak to someone, my automatic assumption, my automatic reaction is heterosexual relationship.

So let's use this example of who's the lucky lady as an example for the purposes of this training. So, let's say the person who I did this to is called Edward. Edward says to me, what can he say or do after I say to him, pardon me, who's the lucky lady? Let's just refresh our mind. So Ama walks to Wine and Cheese, Edward is there, Edward, how are you, how have you been, what's going on? Edward says, "oh, everything's great, I just got engaged." Ama replies, "Who's the lucky lady?" So what does Edward do according to my way of training on this? First, Edward reflects, reflects on the statement as he explores and validates his own feelings. So at this point, Edward can be saying, okay, she said, who's the lucky lady? She's assuming it's a lady as if same sex marriage for men does not exist. So second step, determine. So now Edward can determine whether he would like to follow up with the person or issue at this time. In determining his response, he can think about his own mental health, time concerns and energy.

So Edward can say, okay, do I really feel like, do I just wanna brush this off? Do I just wanna walk away? Or do I feel like engaging on this topic? Let's say Edward decides to engage. Edward can then inquire by saying, what did you mean by that? Can you tell me more about what you mean? I love this because when you inquire, you are by no means being aggressive, you are instead being very inquisitive, no one can blame you for being curious. So if Edward says to me, "Ama what do you mean who's the lucky lady? I didn't mention that the person was a lady." This now allows me to reflect as a person who perpetrated the microaggression, it allows me to reflect on my own bias because I would have to say, oh my goodness, he's right, he did not tell me that it was a lucky lady, why is it that I am assuming that it is a lucky lady? What is in me that in which my mind is dominated by heterosexual relationships or the idea of heterosexual marriage that I did not even give room for the fact that it might be a same sex relationship. Oh my goodness, I've engaged in a huge microinvalidation. So I can engage in that without Edward forcing my thought process, I can engage in that thought process. And so at this point, Edward says to me, "Ama, what do you mean by that? I never said that it was a lucky lady." And I can then think about what I've done and apologize.

Now, this is another step, Edward can share. If the person chooses to follow up, which Edward did in this case, then the recipient of the microaggression can share how the statement impacted the recipient. I think that this is a really important part if the person is up to it. Again, mental health is important. If Edward feels like, hey, I don't, this is not the time for me to share, I'm just trying to eat my samosas and drink my wine and eat my cheese and crackers, I'm not going in this. But if Edward chooses, Edward can actually share the impact, Edward can say to me, "Ama, you know, it's really hurtful when people make these assumptions and assume that as a man, I have to be with a woman. It took me a long time to come out of the closet, I dealt with terrible mental health issues. Some members of my family do not want anything to do with me as a result of my sexual orientation, this has been a huge challenge for me. And finding the strength to live my truth has been a huge challenge, and I feel invalidated when people make statements like your own." That's powerful, right? The more vulnerable you are, the more powerful it can be because now the impact is really going to hit the perpetrator of the microaggression. So that is another, the person can share. And again, this is optional. If Edward says, I'm just gonna eat my nice blue cheese and my wheat crackers in peace, perfectly acceptable, right? Because the most radical thing any of us can do is take care of ourselves and mind our own mental health. And again, as part of this lesson report if applicable, Edward could have reported me and HR could use this as an opportunity to educate the entire firm on it. So that's when you're a recipient.

Now, if you're an upstander, I'm gonna say this, very often, it is hard as a recipient to have the presence of mind to do something or say something. And this is where an upstander can really, really, really help. So let's say you were there at Wine and Cheese with me and Edward, and you overheard this. You can also engage in a similar process. First, you can reflect did Ama just say, who's the lucky lady when Edward said nothing about it being a lady? Then you can determine whether you would like to follow up with the person at this time, and you think about your own mental health, because vicarious trauma is real. Then you could also inquire at Wine and Cheese, but Ama, Edward didn't say it was a lucky lady, how do you know it's a lucky lady, what do you mean by that? You can do that as well. And then I would again, have been forced to say, oh my goodness, this is so right, he never said that. Why am I privileging heterosexual relationships over a same sex relationships, same thing. And then this is another aspect of being an upstander. You can discuss and validate, you can speak to the target and say target or victim, in this case it would be Edward afterwards, you can take Edward and say, hey Edward, I know that was a little challenging, or I personally felt offended that Ama make the assumption that it was a same sex relationship, pardon me that it was opposite sex relationship. I just want you to see that I noticed that too, and I just want to validate you I just want to make sure that you are okay, how are you feeling about it? That sometimes is so incredibly helpful because I say it is sometimes like living in a twilight zone. People make terrible comments, these microaggressions all the time and it feels like the twilight zone when other people are watching and not realizing that something really, really, really bad occurred, it feels like you're in this twilight zone.

I give this one example from when I was at Wharton and we had the head of one of these really big, big, big, big cosmetic companies come to talk at like this Wharton Women in Business Conference. And the woman said we are doing so well. This was a white woman. We are making a killing in Asia through our skin bleaching products, because the Asian women want what we all want, porcelain white skin. I couldn't believe my eyes as a dark skinned black woman, I could not believe my eyes and my ears that this person was saying this, and I found it so jarring, but I looked around me and people looked as if everything was a okay, and no one caught that this was an outrageous comment. They want what we all want, who is the we? Who's the they that all wants porcelain white skin? And many of those creams by the way, are not very helpful to your skin, they're very harmful in the long run. And so, the fact that they were exploiting this colonial beauty standard of white skin being beautiful, and they were exploiting that through their sales of skin bleaching products, pardon me, just absolutely abor and with no shame, unabashedly. So, I would've loved if someone next to me, if one of my white sisters next to me, would've said, how rude, oh, my good, you know, how outrageous, how disrespectful, how abominable I would've been happy if anyone had validated what I was going through in that moment listening. So there is value in that validation, in that conversation. And then a bystander may report but I would say with the targets permission. A bystander may decide, I want to let HR know about this, but I would say I would recommend that you have the targets permission. All right, perfect.

Oh my goodness, so great, so great, so great, so great. Thank you so much, you guys are doing a wonderful job and I am so curious as to what questions you have. You can always email me. My email address is [email protected], [email protected] But let's start wrapping up because our time is coming to an end.

So what have we learned during this time that we spent together? We've learned that bias is pervasive unfortunately, whether we like it or not, we've all been exposed to stereotypes, we've all been exposed to these oversimplified images of other people, and it's very challenging to escape. And so all of us have bias, whether it's explicit or implicit, we all have it. Second, bias is present. It's present in legal environments, it's present in every stage unfortunately, it's present in recruiting as we learn from the whiten resume study and the callback study that very often who gets a callback unfortunately is influenced by bias. It is also present with respect to retention. As people are at their legal workplaces, and they're experiencing these ridiculous microaggressions, these microaggressions might be microassaults, they might be microinsults, they might be microinvalidations, but whatever it is, they are experiencing these challenging, challenging situations that when you look at each individual one, it does not seem like it's bad, but cumulatively, this can have a huge impact and cause people to say, you know what, I'm leaving, I cannot take this toxic environment anymore. And it's also present during evaluations as I gave you the NextGen study and told you about that just, oh goodness, very sobering study in which the memo actually received a different score based on who they were told wrote the memo.

Bias also rears its ugly head outside of work as microaggressions happen everywhere. So now people who are bystanders, people who are standing by when these things are happening, when microaggressions are happening, often don't do anything because of the diffusion of responsibility, they think there's so many people there, someone else might do it because of lack of social cues. They say, oh my goodness, this must not be an emergency everyone else seems fine, it seems like the status quo, okay, nothing wrong here, or fear of retaliation or ostracism. This is especially true in legal work environments, where very often there's hierarchy, there's an idea that you have to be very respectful, very polite all the time. And so unfortunately the bystander effect in which people watch these terrible things happen and do nothing or say nothing can really proliferate. However, we can find our way out of this. All individuals can become upstanders by committing to diversity, being mindful, cultivating empathy, and becoming skilled communicators, upstanders can intervene by asking questions, interrupting conversations, and validating the experience of the victim or target, upstanders should remain respectful of the victim or target's own agency. And upstanders can leverage the tools of conflict communication, of what we've been doing here, leverage the tools of inquiry and so forth to better intervene, especially in legal environments that are, as I mentioned before, laid in with pressures to be polite and to respect hierarchy.

Thank you so much for joining me at this time, it has been really great. Again, if you have any questions, please feel free to contact me. My name is Ama Karikari-Yawson. I'm a Diversity Trainer and Consultant and Author. My company provides all sorts of diversity training programs on a number of topics, including topics we've dealt with today, such as microaggressions, bystander intervention, but we also do more targeted training programs on ageism, understanding the ABCs of LGTBQIA and much more. We also work with companies in order to overcome some of these issues. We do diversity surveys and write diversity plans and consult on diversity plans. I can be reached at [email protected], that's my name Ama, [email protected] Thank you so much, goodbye.

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