FALL 2018 TODAY’S GENER AL COUNSEL
WORKPLACE ISSUES
Unconscious Bias in the Workplace By Yvette Gatling
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he next step, as organizations tackle creating a diverse workforce and retention of minorities and women, is eliminating unconscious bias. Sometimes referred to as implicit bias, unconscious bias is defined as states of mind that inform our everyday decisions. Naturally, these biases — which include stereotypes based on race, color, sex, gender, religion, national origin and socioeconomic status — infiltrate the workplace and affect the work lives of employees. This can hamper diversity by perpetuating patterns we already see in our profession. For example, according to the National Association of Women Lawyers, since the mid-1980s over 40 percent of law school graduates have been women. Yet in 2017, 97 percent of firms report that their top earner is a man, and nearly 70 percent of firms have only one or no women in their top 10 earners. Supreme Court Justice Ruth Bader Ginsburg recalled one example of facing unconscious bias. When she interrupted Justice Sandra Day O’Connor during an oral argument, the next day the headline in USA Today read “Rude Ruth Interrupts Sandra.” When a reporter asked her
Yvette Gatling is a shareholder with Littler Mendelson, and an active member of the firm’s Diversity & Inclusion Council. She counsels and defends companies on a broad range of employment matters, including discrimination, harassment, retaliation, disability accommodation and equal pay. She serves as co-chair of the firm’s Healthcare Industry Group. ygatling@littler.com
about it, she said that her male colleagues interrupt each other all the time during oral argument, and it is not a headline. The first step to eliminating unconscious bias is recognizing that we all have such biases. They may come up in recruiting, work assignment, pitch opportunities, who we select as outside counsel, and who we choose for projects. Once an organization recognizes that unconscious bias exists in everyone, it can institute systems to combat it. Forty law firms, including mine, have adopted the Mansfield Rule to combat unconscious bias. The Mansfield Rule grew out of the 2016 Women in Law Hackathon, hosted by the Diversity Lab in collaboration with Bloomberg Law and Stanford Law School. The Mansfield Rule measures whether law firms have affirmatively considered women and minority lawyers
for at least 30 percent of the candidate pool for promotions, senior level hiring, and significant leadership roles in the firm. This includes equity partner promotions, lateral partner and mid/senior level associate searches, practice group and office head leaderships, executive committee and/or board of directors, partner promotions/nominations committee, compensation committee, and chairperson and/or management partner. The new Mansfield Rule 2.0 will include LBGTQ+ lawyers, in addition to women and attorneys of color. It will also measure consideration for participation in client pitch meetings, and it will request that participating law firms make appointments and election processes transparent to all lawyers in their firms. Finding new systems for recruiting, reviews, promotions and assignments is another way to eliminate unconscious