By Kevin M. Costello, Esq.

Here are some numbers to think about.

Research shows that 58% of  women attorneys of color say they have  been mistaken for administrative or janitorial staff.

It also shows that 50% of women lawyers who identify as Caucasian report the same experience.

But only 7% of white male lawyers, however, say the same.

Sure; it’s “bad” to intentionally discriminate. Yet for the legal profession, which owes a special duty to the people of this country to seek equity and justice, we have to do better. It’s not enough to not do bad things. We must strive – for ourselves, for our firms and or the integrity of our profession – to get to the “next level.” We need to work together to acknowledge, identify and eliminate institutional bias in the profession.

In 2018, the  Center for Work Life Law at University of California, Hastings College of the Law, conducted a study titled: “You Can’t Change What You Can’t See.” The study was done on behalf of the Minority Corporate Counsel Association (MCCA) and the American Bar Association’s Commission on Women in the Profession. It examined implicit gender and ethnicity bias in legal workplaces. Researchers surveyed 2,827 in-house and firm attorneys, and about 20% of them offered comments beyond the survey questions.

Some more numbers from the study:

• 63% of women of color reported having to go “above and beyond” to get the same recognition as their colleagues;
• 67% reported being held to higher standards than their colleagues; Men of color and white women also feel like they are held to higher standards considerably more often (58% and 52%, respectively) than white men;
• 53% of women of color reported  they had equal access to high-quality assignments compared to 81% of white men; and
• 75% of white men believed they have been given fair opportunities for promotion, but only 52% of women of color believe the same.

Women of all races said they were treated worse after having children by being given low-quality assignments, passed over for promotions, demoted or paid less and/or unfairly disadvantaged for working part-time or with a flexible schedule.

The survey also found that:

• 57% of white women and about half of people of color (50% of women of color and 47% of men of color) agreed that taking family leave would have a negative impact on their career;
• 42% of white men surveyed also felt taking parental leave would have a negative impact on their career demonstrating the flexibility stigma surrounding leave affects all lawyers;
• Nearly 70% of women of color say they were paid less than their colleagues with similar experience and seniority, while only 36% of white men report the same;
• 60% of white women reported they were paid less than comparable colleagues;
• 25% of all women reported that they had encountered unwelcome sexual harassment at work, including unwanted sexual comments, physical contact, and/or romantic advances; and
• 70% of all groups reported exposure to such conduct.

The survey raises the question of how many of the decisions producing the above statistics are conscious decisions to disadvantage women and people of color?

Likely, very few. And yet, there are the numbers. What is  the answer to this mystery?

The easiest answer is the one about the tip of the iceberg; most of the mass is invisible; under the water-line. Institutional bias, like mold, grows on itself. The more you have, the more you have. The “next level” of education and advocacy for equity and justice for all of our colleagues – and for the people we serve – is to go under the water and work on that larger part of the iceberg.

The survey makes good suggestions – advocating for hiring, compensation and promotion decisions using a new metrics-based approach that is driven by evidence and not “tradition” (which can be subject to unintentionally biased subjectivity). 

The survey suggested “bias interruption” tools to allow legal institutions to begin to dismantle the unconscious barriers to true equity and fairness.

What can we do? Start by reading the survey.

Think about your workplace. Does it welcome questions about pay fairness and equity and inclusion?  If it has an equity and inclusion committee, is it being given work to do and resources to accomplish that work?  Is it being listened to with an open heart and mind when it speaks?

At the end of the day, not doing “bad” things isn’t good enough anymore. The work now for those with the character, integrity and self-confidence to do it – meaning, of course, the amazing, caring and intelligent members of NJAJ, a powerful force for good in the profession – is to link arms and dismantle implicit bias.

Of course, you’re not a bigot.  But are you an anti-bigot?
 

Kevin M. Costello, Esq. is a past president of NJAJ and is a co-chair of the Diversity, Equity & Inclusion Committee. He is a partner at Costello & Mains, LLC in Mount Laurel, NJ.