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“You Can’t Change What You Can’t See” – the ABA’s 2018 Report on Racial & Gender Bias in the Legal Profession

By Jonah A. Toleno of Shustak Reynolds & Partners, P.C. posted on Wednesday, September 19, 2018.

Earlier this month, the American Bar Association (ABA) issued its first-ever report on research conducted jointly by the ABA Commission on Women in the Profession (the “Commission”), the Minority Corporate Counsel Association (“MCCA”), and the Center for WorkLife Law at the University of California, Hastings College of the Law. The Commission, MCCA, and UC Hastings collaborated to find out how “to understand further law firm and in-house lawyers’ experiences of bias in the workplace.” MCAA President and CEO Jean Lee and Commission Chair Michele Coleman, describe in a Forward to the report four main patterns of gender bias addressed by the research: “Prove-It-Again”, “Tightrope”, “Maternal Wall”, and “Tug of War”.

The ABA’s report identifies and defines these nomenclatures, summarizes patterns, research, and findings for each, and provides tools for firms and in-house departments to interrupt bias in the workplace. Under the “Prove-It-Again” phenomenon, data indicates that women, women of color, and men of color report a need to go “’above and beyond’ to get the same recognition and respect as their colleagues.”

“Tightrope” research showed women of all races reported “pressure to behave in feminine ways, including backlash for masculine behaviors and higher loads of non-career-enhancing ‘office housework’”. “Maternal Wall” findings reflected reports that women of all races felt they were treated worse after having children, being passed over for promotions and given lower-quality assignments. Over 40% of men of all races also reported they believed taking family leave would negatively impact their career.

The “Tug of War” nomenclature describes an environment where bias sometimes can fuel conflict between members of disadvantaged groups, a dynamic that has been reported among women and, in the ABA Report, among people of color.

The report goes on to document statistics on in-house versus law firm experiences and sexual harassment, and it concludes with suggestions for addressing and interrupting bias. Among the suggested bias-interrupting tools for firms and in-house departments are: using and analyzing metrics, assembling diverse hiring pools, and using structured interviews when hiring.

Bias is an innate component of human nature. While a report as comprehensive as the ABA’s can be overwhelming, and implementing its recommended tools for bias interruption may not yield results overnight, as its title indicates, awareness of implicit and explicit biases is the first step to change. Shustak Reynolds & Partners commends the ABA, the Commission, the MCAA, and all the research participants for helping the legal community identify these important issues. We represent financial professionals, firms, and investors from diverse backgrounds in a wide range of issues, including sexual harassment, discrimination, pay equity, fraud, breach of contract, and regulatory issues, for both claimants’ and defense. Please contact us at (619) 696-9500 or find us online at http://shufirm.com for a confidential initial consultation anytime.

Partner Jonah A. Toleno acts as outside corporate counsel and trial counsel for numerous business and individual clients. In the Spring of 2018, the San Diego County Bar Association presented Ms. Toleno with the Community Service Award for Commitment to Diversity.

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