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Diversity, Inclusion, and the Elimination of Bias in the Legal Profession

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Diversity, Inclusion, and the Elimination of Bias in the Legal Profession

We as a society cannot eliminate bias without having uncomfortable conversations. However, it is a topic that cannot be ignored. If you desire to understand why bias exists, ways to reduce bias, and how to create an inclusive environment in your law firm and within the legal profession, this course is for you. In this course, we will learn about implicit bias and how it manifests itself in the legal profession, including in pay inequity. We will also discuss intersectionality, the theory that the presence of more than one affinity status can negatively impact an employee when he or she is subjected to bias. Then, we will review the benefits of effective anti-bias training and policies. Finally, we will detail strategies that lawyers and law firms can implement to cultivate a culture of diversity and inclusion and to eliminate bias.


Cheyne Scott
Chasan Lamparello Mallon & Cappuzzo, PC


Cheyne Scott - Hello and welcome to Diversity Inclusion and the Elimination of Bias in the Legal Profession. My name is Cheyne Scott. I am a partner and the Chair of Diversity and Inclusion for the law firm of Chasan Lamparello Mallon & Cappuzzo located in Secaucus, New Jersey. I have been practicing law for nearly 10 years. And I have defended harassment and discrimination lawsuits, conducted numerous workplace investigations for harassment and discrimination, conducted disciplinary hearings arising out of disciplinary charges for harassment and discrimination. And I conduct anti-harassment, anti-discrimination, and anti-bias training.

So I've had a lot of experience with this topic from different angles, and I'm very excited to talk to you about them today. So let's talk about our objectives. Our objectives today are to define diversity and inclusion, to discuss relevant legal standards, to conduct an overview of pay inequity based on gender and race and the various reasons for those disparities, to help lawyers get a deeper understanding of the underlying unconscious biases that can lead to an unintentional disparate impact on diverse attorneys, discuss the importance of effective policies and training, and to discuss choices lawyers and law firm leaders can make to foster more diversity and inclusion in law firms so that they may recruit and retain diverse talent. So before we jump in, that's a lot, take a deep breath. It is very, very common to feel uncomfortable when discussing diversity, inclusion, and bias. Most of us don't talk about racism, and sexism, and homophobia, and these different topics on a regular basis. And it can be really uncomfortable to discuss them. So I say to you, if you feel any level of discomfort throughout my discussion of various cases and statistics and just the topic in general, that is 100% normal. I just want you to lean into the discomfort so that we can learn together.

So why is diversity important? 2019, there was a Harvard business review article that broke down why diversity is important to employers. First, it attracts talent. According to Glassdoor, 67% of job seekers look at workforce diversity when evaluating an offer. And PricewaterhouseCoopers's survey found that 61% of women look at gender diversity of employers, leadership team when deciding where to work. There's also evidence of diverse idea exchange. So diverse teams can develop more innovative ideas and lead to greater creativity. Also diverse leaders are more likely to have common experiences with their end user. And by end user, we often, in the legal profession, mean the client. So if you have clients in a certain demographic or a certain socioeconomic status, you may have someone who's diverse, who actually will relate and connect more easily with that client. And then finally, diversity signals competent management for investors. So many investors seek out diverse companies and may refuse to work with companies who do not have a diverse workforce. There are many fortune 500 companies that will not retain a law firm unless they are certain that the law firm has a commitment to diversity. And that not only means having people that are diverse working for the law firm, but actually having them engaged in substantive work with their particular case file.

So what is the difference between diversity and inclusion? Diversity is acceptance, respect, and understanding that each person is unique, particularly as it relates to race, gender, sexual orientation, age, physical attributes, level of ability, and religious beliefs. Inclusion is a sense of belonging, feeling respected, being part of a nurturing environment, and valued for who you are, feeling a level of supportive energy and commitment from others so that everyone can be their best selves. So inclusion goes beyond having a diverse composition of employees. It brings together the perspective and contributions of all members of the firm. There is this incorporation of the needs and viewpoints of diverse communities into all aspects of our processes. And it's not placing the responsibility of the "other" to fit in. Simply put, diversity is being invited to the party. Inclusion is being asked to dance.

So let's talk about the legal standards. The Equal Employment Opportunity Commission is the federal body responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee, based on the person's race, color, religion, sex, national origin, age, disability, genetic information. The legal standards that protect each of these protected classes are Title VII of the Civil Rights Act of 1964, Sections 102 and 103 of the Civil Rights Act of 1991, which amends Title VII and the ADA to permit jury trials and compensatory and punitive damage awards in intentional discrimination cases. There's a Pregnancy Discrimination Act, the Equal Pay Act of 1963, the Age Discrimination and Employment Act, the Genetic Information Nondiscrimination Act, Title I of Americans with Disabilities Act, which makes it illegal to discriminate against a qualified person with a disability in the private sector and in state and local governments. And finally, Sections 501 and 505 are the Rehabilitation Act of 1973, which is similar to Title I of the ADA. The only difference is it makes it illegal to discriminate against a qualified person with a disability in the federal government.

So let's talk about these various protected classes and give you an example. So race, this is one that I think we are familiar with, but let me give you a illustration of this. So there's a major automotive company in the Midwest. And there were allegations made by a supervisor that was working there. The supervisor was a black male. He was hired. And at the time, the majority of his workforce were Caucasian males. And when he began working there, he started noticing that the only way he could really describe it was aggressive staring, but he thought that maybe he was being paranoid. So he thought nothing of it. One day, he's having a conversation with a worker, they have a disagreement. And the worker says to him, "Back in my day, we used to bury people like you with a shovel." So he goes to a supervisor. He reports this. This goes through the process. And they go to a disciplinary hearing. The morning of the hearing, the supervisor's supervisor, so his boss approaches him and says, "You know what? You should drop this case because these guys are never going to respect you if you write them up for everything that they do. Why don't you drop this? We'll talk to him. It won't happen again." So this is a brand-new supervisor. He thinks, "You know what? They know better than I do. Let me drop this. And hopefully things will get better." One day, he's walking in the plant and he sees a noose. He immediately reports the noose to his supervisors. They tell him, "It's not a noose. That's just rope that they're using to work on the cars." Then he sees another noose. He reports it. He reports another noose. He reports another noose. He reports a total of nine nooses. The supervisors do nothing. They respond to him with various levels of disregard, and eventually just tell him, "You clearly have no control over your workforce. Figure it out." He finds that whites-only is written on the bathrooms. Swastikas are written in the bathrooms. Stick figures with nooses drawn around them are written on the bathrooms. One day he orders a pizza with several coworkers who are not involved in this discriminatory behavior. And the person who ordered the pizza with him gets the pizza box, opens it. And someone has written an N-word-laced tirade, threatening them for ordering a pizza with the black supervisor. It gets so bad that one day someone pulls the supervisor aside and says, "You're gonna have to bring a gun to work because they're talking about jumping you in the parking lot and attacking you." So this lawsuit was filed.

And I wanna pause for a second. If you have a slip of paper out, I want you to write down what year you think this happened. And I will tell you, and it may or may not surprise you that this case was filed in 2018. And so many people will say to me, "1950s," or you know, "1970s." But for people who are not familiar with this case, that was filed in the Northern District of Ohio. It's shocking to them. And number one, there's not a magical force field in the 1950s that stops this from happening. And number two, this can happen anywhere. So I don't want anybody to get the idea that, "Oh, this only happens in a plant environment or a blue collar environment." This can happen anywhere. And so there's no force field in time and there's no force field in where this can happen. And we're gonna talk more about why this happens a little bit later.

Now, color discrimination is a little different from race. And one example I have is there was a lawsuit filed by an African American casino employee, African American female. She didn't get a promotion to supervisor. The district court dismissed her claims saying that five out of the six management openings had been filled by African American employees. But the plaintiff alleged that her manager had justified the promotion denial by telling her that she was "too black." So she was able in the appeal to establish that she was discriminated against because she had darker skin. And the intermediate federal court reversed in her favor.

So religion, the requirement is that employers must provide a reasonable accommodation as long as the employee can perform the essential functions of their job and that they have a sincerely held religious belief. So let's give you two examples. There is a 2020 EEOC case in the United States District Court of the Western District of Texas, San Antonio Division, where a healthcare company denied religious accommodations for a correctional nurse. So this nurse was a Apostolic Pentecostal Christian. She was hired by the company to work at a correctional facility as a nurse. She asked for an accommodation because of her religious requirements to wear a scrub skirt instead of scrub pants. And they withdrew an offer of employment. So the EEOC asserted that employers are required to reasonably adjust their dress codes to accommodate the religious beliefs of applicants or employees, unless these actions would constitute an undue hardship. And the company ended up settling the matter for $75,000.

Let's give you an example on the other side. There was an individual who worked at a correctional facility, and was Rastafarian, and asked for an accommodation to wear dreadlocks. So there was a requirement that everyone have short hair and the request for the accommodation was to wear the dreadlocks in observance of his Rastafarian faith. The problem was the dreadlocks were too thick to fit under a riot helmet. And a riot helmet was an essential function. Being able to put on a riot helmet was an essential function of the job. And so they said, "Well, this is an undue hardship. So unlike that first case where there was no undue hardship to allow the woman to wear a skirt instead of pants, in order to conduct the essential functions of being a nurse, here the individual could not wear dreadlocks because he could not perform the essential function for safety reasons to be able to put on a riot helmet that put himself and his fellow corrections officers in danger."

National origin, an interesting case that came out of the Northern District of Mississippi in 1998. There was a Mississippi court that heard claim of an American who alleged that after a Canadian consulting group began managing his corporation, he was terminated in favor of a Canadian citizen who was less experienced and less qualified. And the employer argued that Title VII doesn't protect citizenship. But the court held that the American employee had intended to state a claim of national origin discrimination and that he could proceed with his case.

Sex discrimination. An interesting thing about the sex discrimination is we usually think about it as male or female. You can't treat women differently in a workplace. But there was a circuit split up until recently as to whether the Title VII prohibition against discrimination based on sex extended to sexual orientation, transgender status, and gender identity. An individual who worked in a Georgia company was having a conversation with coworkers and mentioned that he wanted to join a gay softball team. And as soon as his employer found out that he was gay, they fired him. Well, he files a lawsuit under Title VII for sex discrimination. And at that time, that court did not extend Title VII protections to people based on sexual orientation. So his case was dismissed. So he appealed through the process. And at the same time, in two different circuits, there were also conflicting findings based on those particular circuits having different rules with regard to Title VII's protections. And so what the Supreme Court did was to consolidate these three cases, in the case of Bostock vs. Clayton County. And in June of 2020, the Supreme Court held that Title VII prohibits workplace discrimination on the basis of sex orientation, gender identity, and transgender status.

Age Discrimination and Employment Act. There was a case in the Eastern District of Louisiana in 2014, where there was a reduction in force and an individual that was laid off filed a lawsuit saying that he was laid off solely because he was the oldest person working there. And so what he was able to establish was two important things. Number one, that there were stray discriminatory remarks made about him, such as, "This guy's been here too long, and we need to get rid of him." Also discovery determined that the reduction in force policy was not followed properly. So maybe these two things by themselves were not enough, but the discriminatory remarks and the failure to follow their own policy was enough to establish a prima facia case that he was fired because of his age.

The Americans with Disabilities Act. Violations of this act would be not hiring a candidate because of their disability, failing to accommodate an employee's disability and harassing someone with a disability.

The Pregnancy Discrimination Act. In some of the cases that come out of this are a little shocking in this day and age. So there is a major telecommunications company that is being sued. Now the case is still pending in New Jersey District Court. And the company had a very generous maternity leave policy. They had also benefits for parents who adopted, but the lawsuit filed in 2016 and is still pending. A woman was denied those maternity leave benefits because she used a surrogate. And according to her complaint, her supervisor made disparaging comments about her choice to use a surrogate instead of adopting. So that case is still pending. There's another case for a news organization in Connecticut. It is also still pending, where a reporter began working for that organization in 2014, she was a reporter. And she had her first child, no issues with maternity leave and no issues with being able to breast pump at the station. The station actually had a lactating room.

So following the birth of her second child in 2019, her lawsuit claims that her news director repeatedly refused to accommodate her request to be allowed to pump inside the news station. And specifically, she asked to be able to pump twice a shift once in the morning and once in the afternoon. The news director told her that her request would be too difficult to manage. And on her second day back from maternity leave, she claims that her news director emailed her telling her to pump in a nearby Target store or a hospital rather than returning to the station, and to plan on doing that ever day. Her lawsuit also alleges that her boss told her that "breastfeeding doesn't count as a disability, and that lactation was not entitled to protection," which is wrong, and told her that, "Look, we have a business to run here." She was forced to email and call managers every day every time she pumped where she was. Sometimes that was maybe in a firehouse, or police station, or something, wherever she had to do a news story. And she had to report how long it would take. And she was told that she was a poor performer, and that a manager would need to shadow her for several days to observe her work and her pumping to make sure that she was actually pumping for as long as she said she was. The laws protect a mother's right to breastfeed her child. And so the company also had generous leave and generous policies, and had a lactation room. However, the choice to discriminate against her, despite these policies and despite these laws, was a very deliberate decision. And one thing you will maybe shocked about is these managers who made these decisions were women.

Okay, Genetic Information Nondiscrimination Act. So GINA prohibits employers from discriminating against employees on the basis of their genetic information. And so genetic information is broadly defined and includes information generated from genetic tests, the genetic tests of family members, and the individual's family medical history. When this was signed into law in 2008, I was finishing up law school. And the first thing I thought about was the movie "Gattaca" with Uma Thurman and Ethan Hawke, where the government would find people's genetic information and make determinations about where they could live, where they could work, who they could interact with. And then people would be killed if they hung out with people with the wrong genetic information. It was very, you know, dystopian. So the first thing that came to mind in that case was, "Oh my gosh, we're stopping government overreach." You know what? The first case that actually went to trial on this was not what I thought it would be at all. It's a case in 2015, and the company provided shipping and storage services for grocery stores. And in 2012, an employee of that company began, and this is straight from the case, a quote, I am not making this up, "An employee began habitually defecating in one of the warehouses where the food products were stored and this destroyed products and caused obvious health concerns." So to identify the perpetrator, the company decided to obtain genetic samples from two warehouse workers. The company suspected to be behind the prank and took the DNA of the two workers. They sent the information to a lab and the employees were exonerated. Good news. But as you can imagine, word got around about the test and they were humiliated by other workers. So they filed a lawsuit under GINA and the Federal District Judge found in the worker's favor. And the jury returned a verdict in the amount of $2.2 million, broken down into $475,000 in compensatory damages and $1.75 million in punitive damages, and making matters worse for the company, the true identity of what the federal court called "the devious defecator" remains a mystery to this day. This is really the type of case that I didn't expect to come out of this law, but it makes sense. You can't just take people's DNA. There is due process. You either call the police. You put up cameras. There's something that you can do before you get to that step.

Now, a less exciting case is a EEOC case where individuals who got conditional offers of employment for a mining company had to undergo a fitness for duty examination and were also asked to provide information about familial history of diabetes, heart disease, and cancer. And so they filed an action with the EEOC saying, "Well, of course it makes sense that I have to do a fitness for duty for a mining company. That makes sense. But why do I have to give you my familial information?" And so the EEOC said, "Absolutely, this is violation of GINA. This is something that's considered genetic information. And this is something where an employer can use this information to deny someone a job, thinking in the future, they're more likely to have this particular medical condition, our medical premiums may go up. This person may be out sick more. So let's just discriminate against them based on something that may happen in the future." And this is what this law was made to make sure that it did not happen.

Equal Pay Act of 1963. So let me give you a history lesson. It was signed into law by President John F. Kennedy in 1963 and it banned employers from discriminating on the basis of race, color, religion, sex, and national origin when it comes to equal pay. There was an amendment in 1972, which expanded this to executive professional administrative jobs and other categories that had been exempted under the original law. But there really weren't a lot more changes about this law until recently. Lilly Ledbetter worked for Goodyear Tire for 19 years. And one day she received an anonymous note that she was being paid significantly less than other men who had the exact same job. So Ms. Ledbetter did some recon. And she was able to determine that this was true. And she was exactly the same as all the men, same experience, same merit. The only difference was that they were men and she was a woman. So she files a lawsuit under the Equal Pay Act. And she loses that lawsuit, not because she was not able to establish a prima fascia case of a violation of equal pay. No. The court said, "You've proven everything." The problem is the statute of limitations began to run after the first paycheck that had that disparity. But that paycheck was nearly two decades ago. So she filed in the intermediate appellate court, loses again. Then she gets up to the United States Supreme Court. The court says, "You've proven everything, but the statute of limitations is what it is." In a well-written dissent, the Late Justice Ruth Bader Ginsburg wrote that this was a terrible result that can be remedied by the legislature, and that the legislature can make a change in this statute of limitations. And that is exactly what the legislature did. So in 2009, the Lilly Ledbetter Fair Pay Act, which reduced the time restrictions on wage discrimination complaints and expanded the statute of limitations to begin to run when the person discovers the pay disparity was signed into law by President Barack Obama. It was one of the first bills that he signed into law.

So speaking of that, let's talk about the gender pay gap. So in 2018, Pew Research data showed that women make approximately 85% of what men earn, and women in senior positions, such as CEO, vice president, and general counsel, often earn approximately 80% of what men in the same job titles earn. 2017 US Census Data showed that full-time, year-round working women earned 80% of what their male counterparts earned. And in 2018, men held 77.5% of fortune 500 board seats and women held 22.5%. Only 4.6% of those seats were held by women of color. And there was a Temple University study that found that assuming average annual pay increases a 5%, a male employee who's starting salary is $55,000 rather than $50,000 salary for a woman, and an equivalent job would earn more than $600,000 extra over the course of a 40-year career. As you can imagine, this impacts earning potential and retirement choices. So woman would have to work longer to save more money for retirement. So the theory of intersectionality asserts that people are often disadvantaged by multiple sources of their race, class, gender identity, sexual orientation, religion, and other identity markers.

Not only is there a gender pay gap, but there is also a gender and race pay gap, or a gender and sexual orientation pay gap, or gender and religion pay gap. If you have more than one affinity status, more than one protected class status, that can negatively affect you in wages. So 2015 Pew Research data showed that white women earned $0.82 for every dollar earned by white men, black women earned $0.65 for every dollar earned by white men, Hispanic women earned $0.58 for every dollar earned by white men. So what is the cause? So there are several that are proposed as potential causes. The first one is this idea of positional segregation is this idea that women are often lacking in top and better paying managerial positions within an organization. It's this idea that men often underestimate women's skills based on their current under-representation in certain occupations, and then discriminate against them in those occupations on the false assumption that increasing their representation would lower overall productivity. It's this mindset that if they were better, more of them would be here. So, clearly, since they're not here, then that means that bringing more of them means we're lowering the standard.

On the flip side, there was occupational segregation, is this idea that many so-called women's jobs have historically not been evaluated as contributing as much to men's jobs to organizational success. A lot of the discrimination in these professions, "male-dominated professions," the legal field is one of them. It's caused by these social pressures of interpreting women's inclusion as a threat to the profession's masculinity. Under this idea, men don't discriminate against women because they view them as less qualified. They discriminate because they're trying to protect the social power that men hold through the membership in the "boys' club." This idea of, "Well, if we have more women here, there's not gonna be enough space for the men." Another cause is a lack of political power. As of 2020, and this was before the 2020 election. So I know that the numbers have changed. But as of 2020, women accounted for only 18% to 29% of state legislators, 26.4% of state senate seats, 30% of state house and assembly seats, and 10% to 20% of governors, although they are 51% of the national population.

Another major cause is unconscious or implicit bias. This is a preference for a person or a group of people that individuals unknowingly, and that is the operative word, unknowingly, have in the back of their minds, which influences a person's behavior. And the evolutionary fight-or-flight response process causes people to rapidly categorize people in order to survive. Over time, this need has led to stereotypes, prejudice, and discrimination. And this unconscious bias can impact an employee or a potential employee's life. So we all know about the fight-or-flight response. Biological response from the prehistoric days where we knew to flee when we saw a tiger, but we knew to fight if we saw someone harming a child or a loved one. So it's 2022. We don't need to run from tigers anymore. But what our brain is doing is categorizing by power, intelligence, and ability. And we have categorized based on our entire life's experiences, conversations around the dinner table when we were young, conversations that we heard from peers, commercials we saw in television, magazine articles, various things that we have experienced and seen have unconsciously informed us who is in power, who can tell us what to do, who is intelligent, and who has the ability to do things. And when we see things that threaten those beliefs, those unconscious beliefs, we can often feel unsafe without there being any threat whatsoever. So as a result, people are likely to hire people that look like them or to work with people like them, or to give the benefit of the doubt to people who look like them. If they're not aware of this bias, that will continue to happen and impact the workplace. This often forms itself in confirmation bias, the tendency to search for interpret focus on and remember information in a way that confirms one's preconceptions, and any evidence that is in contrast or conflicts with your preconceptions are disregarded.

So let's talk about some examples. There is the famous MIT and University of Chicago resume study, where the economist sent 5,000 resumes in response to help wanted ads in Boston and Chicago. And they randomly assign stereotypically Caucasian-sounding names such as Greg, or stereotypically African American names, such as Jamal, two otherwise identical resumes. And they found that applicants with white-sounding names receive 50% more callback interviews than those with African American-sounding names. There's also the blind audition studies where they found that having musicians auditioned behind a curtain where the gender of the participant could not be seen by the selection committee substantially increase the likelihood that a female musician would advance beyond the preliminary round and be ultimately selected for position in the orchestra. Then there's stereotype studies. And there are three major studies that are fascinating. So stereotype threat refers to the risk of confirming negative stereotypes about an individual's racial, ethnic, gender, or cultural group. And so stereotype threat increases an individual's anxiety level and reduces their overall work performance. In these 1990 studies, they selected white and black college students who had identical SAT scores and gave them a 30-minute portion of the GRE. And they gave them either a stereotype threat condition or a non-stereotype threat condition.

So in the stereotype threat condition, the participants were told that the test was diagnostic of intellectual ability. In the non-stereotype threat condition, the participants were told that it was a lab task that studied problem-solving. In that stereotype threat condition, blacks did less well than whites, but in the non-stereotype threat condition, the blacks' performances were almost equal to those of whites. When the students merely recorded their race on the test, presumably making the stereotype salient in their minds, even if they were not told this test was diagnostic of their intellectual ability, blacks would perform less, well, than whites. There were also gender studies taken where researchers gave a math test to men and women, and they told half the women that the test had shown gender differences. So when test administrators told women that the test showed no gender differences, the women performed equal to the men. Those who were told the test showed gender differences did significantly worse than men. And this experiment, again, was conducted with women who were top performers in math, just as the experiments on race were conducted with strong motivated students. Then there was a sports study done in 1999 out of the University of Arizona and Princeton University, where they took college students and they had them play a golf game. They found that black participants performed significantly worse when performance on a golf task was framed as diagnostic of "sports intelligence."

 In comparison, white participants performed worse when the golf task was framed as diagnostic of "natural athletic ability." So what happened here was stereotypes that were flipped. And I wanna make it clear. No stereotypes are good because they all dehumanize people and turn people into caricatures. But the stereotype that was at play here was a stereotype that African Americans had natural athletic ability. But in comparison, using the phrase, "sports intelligence," created a stereotype threat in these African American participants. Some other biased behaviors, microaffirmations. These are tiny acts and gestures of inclusion, caring, and graceful acts of listening. This is where you have someone who starts working at a law firm. The partners take that associate under their wing. They teach them how to do things. They help them out when they make mistakes and they nurture them and help them to be wonderful attorneys and grow at the firm. Then there's microaggressions. These are statements, actions, or incidents regarded as instances of indirect, subtle, or unintentional discrimination against members of a marginalized group, such as a racial or ethnic minority. So let's go over some examples of common microaggressions.

The first is, "You speak so well." It's an offset of "You are so articulate." Both of these suggest that the speaker did not expect the person they're saying this to, to speak well or be articulate based on the speaker's first impression. And that first impression is based on their appearance, their race, their national origin. Maybe they expected a accent, or maybe they expected it to speak differently because of their race. What it does is it sets that person apart from other members of the same background. And it also creates this feeling of isolation from the speaker. And it's so important to note that this is why it's a microaggression. The person that said it may not have had any negative intention, but the effect on the listener can be very hurtful.

The next one, "I cannot be racists, my best friend is blank." Every person, regardless of background, is subject to bias. I am subject to bias. It's a human trait. People can have close friends or close relationships with people of a particular background while still having negative biased beliefs about that background, or that race, or religion, or sexual identity as a whole. And the idea is you see your best friend as your best friend, and you may see people of a certain background as that background, that stereotype. And I think another concern about this particular microaggression is it shuts down all conversation. You know, once you say, 'Well, I can't be this," well, nobody may be saying that you are whatever is. Nobody's saying that you're racist. Nobody's saying that you're homophobic. But can we have a conversation that what you said may have been hurtful to someone, look, people have come forward and said that this is not appropriate or that it can be hurtful to people. And once you kind of go to, "Well, I can't be this," or, "I can't be that," it breaks down the ability to have a conversation, to have a mutual understanding.

The next one, "I don't see color." And the idea of not seeing skin color is really, really nice in theory, but in practice, it's inaccurate. So anyone who is able to see and see color can discern and recognize one skin color to the next. And the goal is not to be color blind. The goal is actually to see and recognize skin color, but to control and regulate your impulse to make decisions based on those characterizations. And so being able to first recognize this is critical. We have to first recognize that each and every one of us has preconceived notions and expectations about different racial groups, and awareness proceeds change. And the goal is not to stop seeing color. The goal is to see color, to see and recognize and appreciate the differences that we have and to embrace those differences. And if we don't do that, we are going to default to our unconscious biases every time.

Next is, "Oops, wrong person." This happens when maybe there are only two or three people of a background at a law firm or a workplace and one minority is confused for the other. And that can show a lack of effort of inclusion. Where are you really from? Although someone may be genuinely curious about someone's background, when that curiosity turns into an interrogation, it can really make the other person feel like they just don't belong. So for example, if you say to someone, "Hey, where are you from?" And they say, "I'm from this local city that we're in right now." And you say, "No, no, no. Where are you from?" The answer hasn't changed. They're still from that city. And so you keep asking the question, but in their mind, they're like, "Well, would they ask someone who is not my background that same question?" And so it can really make them feel as if they don't belong.

Your name is too hard to pronounce. So we are in a diverse country with diverse workforces, with people with many different names. And if we can learn how to say Tchaikovsky and Daenerys Targaryen, we can put a little extra effort to learn the names of our coworkers and subordinates. And what the messages that they get is you don't belong here, and your name is not worth learning because it's not "normal" to me. And people have asked me, "Is it okay to say, 'Hey, can you give me the phonetic spelling?'" That's 100% fine. Just make sure you don't ask them for the phonetic spelling every time you see them, but there's nothing wrong with asking them a couple times, "Hey, I wanna make sure I get this right," but saying your name is too hard to pronounce or giving them a nickname without them, telling you to give them a nickname is a microaggression.

And finally, "You look so young." Now, a lot of people say to me, "Oh, Cheyne, this is not a microaggression. That's a compliment." What happens is when people come to me with a complaint or with this particular microaggression, it's when they're discredited, it's when they worked very hard on a project or a case, and someone is asking them, "Oh, you didn't do that. Who did this? You're too young to do this." It's almost telling them like, "You're not good enough to create this work product, to complete this project because of what you look like." And so that is why this is a microaggression, because it's usually said to someone in a discrediting and devaluing situation. So what does this all mean? And why should you care? Because we talked a few slides ago about stereotype threat, just the mention or the reminder to a person about their background and the associated biases triggers this fear of confirming negative stereotypes, which results in poor performance, despite existing motivation, intellect, and ability. So if you can imagine women and diverse individuals encountering microaggressions like these on a regular basis, that may on some level give you some understanding into why we have these diversity discussions in the first place. And that is why diversity inclusion and anti-bias policies and training are so crucial and critical. So the goals and policies of training. To ensure that all subordinate and supervisory employees understand that workplace harassment and discrimination will neither be condoned nor tolerated. To create a procedure to promptly, thoroughly, confidentially, and respectfully handle complaints, and to establish a strong defense to harassment or discrimination lawsuits.

So two landmark Supreme Court cases that came out in 1998, Faragher vs. City of Boca Raton, and Burlington Industries, Inc. vs Ellerth establish that proper policies and training can serve as an affirmative defense to harassment or discrimination lawsuit. Now, please note, in 2019, New York passed a bill eliminating this affirmative defense, but that appears at this time, at the time of the recording of this particular presentation, that seems to be the only state that has eliminated this offense. So there's two issues here. You can have inappropriate diversity training and you can have inadequate diversity training. Two main examples of inappropriate diversity training happened in the 1980s and '90s. In 1996, R.R. Donnelly & Sons, that is a Chicago-based printer, they invested $6.6 billion, yes, with a B, in two diversity training program that forced black and white employees to watch a movie showing lynchings in the Old South. Employee were also required to respond to offensive questionnaires with statements about the unpleasant body odor of racial minorities and sexual looseness, and immorality of members of a certain nationality. These offensive trainings were conducted "in an effort to make white employees confront their alleged racism."

This led to a class action lawsuit by 3,500 black employees. Ironically, this training was established as part of a settlement of a 1993 discrimination lawsuit. So in another example of inappropriate diversity training from 1988 to 1994, the Federal Aviation Administration, the FAA, sponsored workshops on gender differences, racial discrimination, and sexual harass in which one of the exercises required male air traffic controllers to walk a gauntlet of female controllers who were instructed to pat the men's rear ins, grab their crotches and make lewd comments. The workshops also required black employees to go into a separate room, discuss their problems at the hands of the white-male-dominated society. That's what it said. Rejoin their coworkers, and then verbally confront a white employee. As you could expect, this led to lawsuits and a congressional investigation. So why did this happen? In the 1980s, workforces began to become a lot more diverse and there were more lawsuits at this time. And so many of the lawsuits settlements required diversity training. And this led to a market of, I have no better term than clown car diversity trainers who did not really know what they were doing and were making things up, and essentially just humiliating people. When any law firm or corporation is hiring a trainer, they should choose an attorney, someone that knows the law, knows what type of training and policies are necessary to make the firm or company eligible for the affirmative defense and someone who understands that anti-harassment training is uncomfortable, but doesn't have to be traumatizing or humiliating. We talked about inappropriate training.

Let's talk about inadequate training. And this comes from a professor from Columbia University, Jonathan Kahn. He wrote the book, "Race on the Brain: What Implicit Bias Gets Wrong About the Struggle for Racial Justice." And he talks about the concept of deracinatin the legal subject, this idea that we're all the same race, the human race, love is love, why do we look at differences? And the idea is we can't ignore it, because as I said already, bias is something that's inherent to all humans. And it's not just limited to one race. It's everyone. And if we do not talk about it, we can't address the impact it causes in the workplace. We can't have a diverse and inclusive workplace without having these uncomfortable discussions, but ignoring someone's background, you are erasing who they are. Our differences are often great. However, bias causes us to default to all negative differences. The next problem is obscuring power. Professor Kahn talks about this idea of recreational anti-racism. So it's just, let's talk about what's going on in our brain. And then we just completely obscure the fact that there are real structures of power that are acting in real powerful ways. It focuses on the person and their own attitudes, instead of focusing on the impact that those attitudes are having on others. Third is seeking a technical fix. You know what? Let's just have an expert come in, train us, and then we'll magically be fixed. Doesn't work that way. And four, dumbing down explicit racism. So this reduces explicit racism down to obvious examples. So we can all think of just really horrific images that bring up racism or discrimination. It allows us to ignore the more insidious and subtle and nuanced manifestations of conscious racism. And it just renders racism as a static thing with one set and measurable manifestation, and turns into this mythology that does not exist today anymore. You want training that discusses implicit bias, explains power dynamics, explains that a great deal of this is unconscious and systemic, instead of just saying, "This is the worst of the worst. Thank, God, you're not like that." And then we just move on without having critical thought about it.

So finally, let's talk about the impact of bias in the legal profession. And so I'm going to be discussing statistics from several studies. One is a 2006 American Bar Association report visible and visibility, women of color in law firms. There's a 2009 catalyst study, 2018 ABA report from the Commission on Women in the Profession, and the 2020 ABA report left out and left behind the hurdles, hassles, and heartaches of achieving long-term legal careers for women of color. So let's take it back to 1900. At that time, there were 112,939 attorneys in the United States. 718 were African American. 81% were defined in the US Census as "colored," which included Chinese, Japanese, Korean, or Indian men. The United States Census did not include statistics on women lawyers at all at that time. So fast forward to 2004, 50% of law graduates are women. 21% were minorities. 17% of law partners were women. 4% were women of color. In 2005, 49% were women, 6% African American, 2.6% Asian, 3.5% Hispanic Latino. In 2006, 48% of all associates and private law firms were women, 15% attorneys of color. In 2020, 15% of associates were women of color. So 14 years, no change. Less than 4% of partners were women of color. And 2% equity partners at large firms are women of color.

Let's talk about attrition. In the late 1990s, more than 75% of minority female associates left their jobs in private law firms within five years being hired. After eight years of being hired, the percentage of minority female associates leaving increased to 86%. In 2005, 81% of minority female associates left their law firms within five years of being hired. Why are they leaving? So the first attorneys reported experiencing disparate treatment in law firms, in networking, demeaning comments, desirable assignments, performance evaluations, marriage, and family. So with networking, 62% of women of color reported they had been excluded from networking opportunities along with 60% of white women and 31% of men of color. Only 4% of white men stated that they had been excluded from networking opportunities. 43% of women of color reported having limited client development. That's along with 55% of white women and 24% of men of color. With mentoring, they were only given assignments from minority partners, or they were mentored by someone who had no power in the firm. And the idea of show horses, this is being brought into meetings only to impress clients and show diversity, but then denying them opportunity to conduct any substantive work for that client, or having them sit at council table during a trial only to be a diverse face for the jury, but then given no substantive role in the trial. Demeaning comments. So 49% of women of color said they had experienced demeaning comments or harassment compared with 47% of white women, 34% of men of color, and 2% of white men. And so there's this idea of allowing partner's biases.

So in one of the studies, there was a story of an Asian male associate who was invited to meet with the client only because he was Asian. And he knew this because when he came into the room, all it was, was this really awkward, "You guys are both Asian," introduction, and then no discussion of him doing any substantive work on the file. And so this associate goes back to his office and later the partner left a gibberish voicemail attempting to imitate or mock Asian dialect. As you can imagine, that was horrifying for this person. And he played it for other people in the firm and they were equally as horrified, but nothing happened to that partner in any disciplinary fashion. Another example is, a Hindu attorney was told by a mentor that she had to give up being vegetarian if she wanted to get ahead and be successful with clients who want to work with someone who can order them a steak. And these two examples are not unconscious bias. They are conscious. If a diverse attorney has this experience and the law firm does nothing about it, then they're going to leave.

One example is allowing client biases. So one of the studies mentioned an Asian woman attorney. She reported a sexually and racially offensive comment made by a client. She was asked by a male partner, whether she found the client attractive. So when she went to the only female partner, she was told to "Just let it lie. Don't make waves. Just move on." Nevertheless, law firms are shocked when those same attorneys leave the firm and then they blame them for leaving. And I've heard law firm leaders routinely say, "We hire diverse attorneys. We train them and invest in them, and then they leave." Problem is when they report harassment or discrimination, they are ignored or discredited. And this is the result, the difference between diversity and inclusion. Another issue was desirable assignments. There is a legal assignment pyramid. At the bottom is document review, legal research, and contributing to a brief. So in the middle, there is interviewing witnesses and significant participation in a trial. And then at the top, there's lead trial attorney in managing client relationships.

So what happens is if you get stuck at the bottom, you're stuck in this, you're doing great bubble, where you're doing doc review, you're billing hours, but you're not doing anything that will advance you. And so 44% of women of color said that they had been denied desirable assignments compared with 39% of white women, 25% men of color, and 2% of white men. And so I wanna make it clear that there's nothing wrong with having to do doc review when you're 10 years in. I still do my own doc review, but I still have worked at the top of the pyramid and it's still available to me. But if someone is there for too long and they stay at the bottom too long, they will move on. Performance evaluations. So 31% of women of color reported receiving unfair performance evaluations compared with 25% of white women, 21% of men of color, and 1% of white men. So there's this idea of soft evaluations, a lack of constructive criticism, which leads to lack of improvement. And so what happens over time is the person has no idea that there are certain issues maybe with their writing or certain issues with the way that they interact with clients. They've never told them. So when they're up for partner, they're told for the first time that their writing is poor or that a client didn't like how they reacted to something or communicated with them. Devalued achievements. One of the individuals who wrote in one of the studies said that... It was a black female. She got a very high profile case dismissed with prejudice and received zero acknowledgement for her accomplishment. Her case was valued at 1.5 million that she got dismissed. And then when a non-diverse associate won an oral argument against a pro se plaintiff, the firm announced the win to everyone by email and took everyone out to drinks to celebrate. That case was valued at 5,000. And so it's just very important for firms to encourage attorneys to announce their wins, all of them, and to be recognized. Subjectivity and performance evaluations.

There was a 2014 writing sample from Aaron Reeves, who is a former professor at Northwestern University, where partners from different law firms were asked to evaluate a young lawyer's memo. Each partner was given the same memo written by fictional, third-year associate, Thomas Meyer, except half received a memo from an associate identified as white, and the other half received a memo from an associate identified as black. They deliberately inserted 22 different errors, and the partners found more of the errors in the black-identified memo and described the black version of Thomas Meyer as less competent. So what does this tell us? When expecting to find fewer errors, we find fewer errors. When expecting to find more errors, we find more. This is an unconscious confirmation bias. The evaluators unconsciously found more of the errors in the African American Thomas Meyer's memo, but the final rating process was a conscious and unbiased analysis. Another thing that was really interesting was it didn't matter if the partners were white or black. The ones that did the evaluations, it did not change. The black partners were just as likely to find more errors on the black Thomas Meyer as white partners were. So with marriage and family, 72% of women said that others questioned their career commitment after they gave birth or adopted a child, whereas only 15% of men of color and 9% of white men were asked these questions. And they were met with comments such as, "Don't you feel bad leaving your kids at home?" And do you remember when we talked about stereotype threat and microaggressions? This type of questioning is activating the same fears and potential performance drops. And this is why you need to have training that discusses how inappropriate these comments are.

One interesting statistic that came out of the studies was the perceptions of actions that impact compensation. What did people believe impacted their compensation the most? With white men, 52% believe that developing a book of clients was something that had the largest impact on compensation. 31% professional public recognition, 26% staying with the same employer, and 23% changing employers. But one thing that was different was with women of color, men of color, and white women, the majority said changing employers was an action that impacted compensation. Others said staying with the same employer, acquiring legal skills, expanding their network. But at the bottom of many of these was developing a book of clients. Even though women believe that changing employers had the biggest impact on increasing salary, statistical analysis of salary differences reveal that changing employers had a negative impact on women's salaries. Each additional employer on average reduced the earnings of white women by 9%, and by 8% of women of color.

However, changing employers did not have a negative impact on men's salary, irrespective of race. So what happened is they would get the initial salary bump, but the annual salary increases, benefits, and bonuses would be less because of bias. Another thing to note is the white men understood that a book of business would increase their overall compensation. This is not a secret. That is your road to success in a law firm. But the women and men of colors exclusion from strategic networks and assignments kept many from indicating that a book of business helped increase their compensation, because it was not something that was available to them or they didn't perceive it to be available to them. So it appears that they believe the best way to improve was by leaving and going somewhere else that would give them those opportunities. So why are diverse attorneys staying? Work enjoyment. So if they find that if it's intellectually challenging, there's problem-solving, they feel like they're helping. And also having prestige and status is something that keeps people where they are.

Financial reasons. We have student loan debt. So first generation lawyers and lawyers of color carry higher student loan debt. So that's often a reason why they will stay. Family and community. People of color who attain some financial security have been shown to lend and give money to a broader network of relatives, which has been shown to sometimes harm the stability of their financial position, and may partially explain the race wealth gap, but also explain why people stay. But then on the flip side and the positive side, it's paving the path for lawyers of color who would enter the firm after them. So showing others what is possible. So recognizing the importance of representation is one reason that people will stay. So where are attorneys going when they leave? When the attorneys leave, they go in house, or they go to the government, or a lot of people leave.

So the highest percentage are women of color and white women. 15% of them find jobs outside of the legal profession when they leave the law firms. What can you do as an attorney or someone who may be a law firm leader? The first step is awareness. Being aware of the dynamics of unconscious bias and stereotype threat, and all of these different things that are going on under the surface is critical to making a difference in diversity and inclusion, and the elimination of bias in law firms. And the next step is to accept it. Just accept that this is the way that things have been, but then there has to be a willingness to have uncomfortable conversations in order to change. And that's where a lot of people fall off. You cannot achieve change without having uncomfortable conversations. If the majority non-diverse leaders and firms refuse to have the conversations, there will not be changes. And then implement effective anti-harassment, anti-discrimination bias policies and trainings, and finally reduce bias and encourage inclusion. Once you're aware that there is a huge difference between diversity and inclusion, you will then know the difference between hiring and retention.

I recommend that people take the implicit association test. It's by Harvard University. It measures the existence and strength of biases by evaluating response latency, and make sure that there is policies and training at the particular law firms, discussions of the relevant legal standards, talking about harassment and discrimination, discussions of implicit and unconscious bias, complaint and investigation procedure, procedure for complaint intake, electronic communications and internet usage, confidentiality and cooperation, prohibition against retaliation, remedial action, documentation, applicability to non-employees, training and distribution of the policy. And implement bias interrupters, increase monitoring of work distributions, randomization of work assignments, equitable distributions of the preferred assignments, and more standardized, less objective decision-making processes. It has to be by choice, not by force. Now mandatory anti-harassment training and anti-discrimination and bias training is something that is necessary to shield employers from liability. But it has to be presented in a way that gives employees the choice of what to believe in order to be effective. Look, employees, you get to believe what you want to believe, but these are the consequences of those beliefs when they are acted out in the workplace. And that's going to perceived very differently than demonizing people. There was a University of Toronto study where white participants read a brochure, criticizing discrimination against blacks. And when participants felt pressure to agree with the brochure, the reading strengthened their bias against blacks, but when they felt the choice was theirs, the reading reduced bias.

Make it personal. Training that fosters environment of inclusion and teamwork needs to be implemented. And research suggests that individuals who believe their chances of success are dependent on the performance of others, the team, they pay significantly more attention to inconsistent information that challenges their stereotypes. That means they are less likely to fall back on bias.

Mentorship programs. When workplaces create mentorship programs, supervisors who help their mentees advance in the company are more likely to believe that those advancements are deserved, regardless of the race or gender of the mentee. And on average, mentorship programs increase the representation of black, Hispanic, and Asian American women, and Hispanic and Asian American men from 9% to 24%. Next hold people accountable.

Hold practice group leaders accountable. There should be responsibility to practice group leaders to monitor and advance the careers of everyone, including diverse attorneys in their practice areas. And make sure that diverse attorneys are being groomed for leadership positions the same way that anyone else is. And incorporate diversity into firm decision-making. Recruiting, there should be a relationship with local law schools when it comes to recruiting talent. Retention, have an inclusive environment where people will leave.

Promotion and partnership track. Make the metrics clear for what is expected of associates to grow and be promoted in the law firm. Is it billable hours, the fee billing intake, percentage of a book of business?

Be clear. And the more you leave up for discretion, the more likely people will use that discretion to default to biases. Encouraging partners to say hello, stop by offices. Take associates out to lunch and invite them to client events. If this becomes normalized, this won't appear to be performative and it will become natural to many partners.

Professional development. Equally send associates to CLEs, seminars, other events to improve their skills. Encourage them to ask to attend relevant CLE. If an associate is excelling in one area, but needs help in another, look at seminars that might help them improve that skill.

Client development. Introduce your associates to the clients and hold people accountable for non-compliance of anti-discrimination, anti-harassment policies. But if you hold people accountable and foster an inclusive environment, you will reap the boards and benefits of a diverse workforce that has a diversity of thought, connection to the community, and your firm or organization will be recognized as leader in that area and attract even more talent.

So to conclude, if you have any questions, please feel free to email me. My information is there. I thank you all for listening. This is a tough topic to cover. And I thank you all for staying with me and sitting through the discomfort. And I'm hoping that it was valuable to you. I hope everybody has a great day. Thanks.

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