Staring Down Implicit Bias in the Legal Profession

By Joan Fucillo

Brenda Berkman

Women outnumber men in law school and comprise nearly half of law firm associates. Yet for almost two decades, the percentage of female partners at law firms has hovered around 20% for both equity and non-equity partners, and women leave the legal profession in significantly greater numbers than men. Studies show that a primary reason for this attrition is the harassment and gender bias experienced by many women in the legal profession.

These facts and they issues they point to are the backdrop for the New York State Bar Association Women in Law Section’s (WILS) 16th Annual Edith I. Spivack Symposium, a full-day program held on January 28 at NYSBA’s Annual Meeting.

Speaking Out and Stepping Up
Confronting implicit bias is a journey that requires us to develop a “growth mindset” and “stumble upwards,” New York Public Library Vice President, General Counsel and Secretary of Michele Coleman Mayes said in her keynote address at the program. Use “light” and “heat” to stare down bias, she added, explaining that we use “light” when we educate others about bias and advocate for diversity and inclusion, and “heat” when we confront and interrupt biases.

Mayes has been a trailblazer in her own career and a powerful voice for diversity and inclusion. She outlined the four common patterns of gender bias that exist in the workplace, including the legal workplace. Mayes encouraged attendees not to fall into the traps set by those biases – don’t apologize, doubt your own worth, accept “housework” assignments or undervalue your time. Rather, said Mayes, interrupt the patterns of gender bias – promote your own accomplishments, ask for constructive feedback, convey your value, develop allies and help others up the ladder.

Taking Charge
A panel on strategies to confront implicit bias was moderated by Program Co-Chair Laura Sulem, Esq., Thomson Reuters, and Leona A. Krasner, Esq., Krasner Law PLLC. Sulem and Krasner were joined by Captain Brenda Berkman, Esq. (ret.), Fire Department of New York City(FDNY); Caitlin Halligan, Esq., Selendy & Gay PLLC; Ynesse Abdul-Malak, RN, MPH, Ph.D., Colgate University; and Hon. Karla Moskowitz (ret.), hearing officer, National Arbitration and Mediation.

Berkman described her move from practicing law to making law as the named plaintiff in a class-action lawsuit that opened the doors of the FDNY training academy. She continued to face the biases of her fellow firefighters as well as members of the public for whom “firefighters equal men.” Even today, she added, women in the FDNY “are under the microscope.”

Abdul-Malak detailed the barriers and stereotypes faced by attorneys with disabilities, and by attorneys based on their sexual orientation or transgender status. Halligan observed that the pay gap between women and men in the law has been growing wider.

Moskowitz noted that the 2017 Commercial and Federal Litigation Section’s report on women in the courtroom revealed that women are given fewer opportunities to argue cases. “It is huge for senior partners to see [women] argue in court,” Moskowitz said. If they see only men arguing in court, then that’s what is expected, she added, calling it a self-perpetuating cycle. Moskowitz described her first implicit bias training as part of a judges’ retreat: “The men walked out,” she recalled, because they felt “they didn’t need it.”

Moskowitz noted that, as a result of the Commercial and Federal Litigation Section’s report, some judges are now trying to be proactive, encouraging female and other junior attorneys to argue motions and cases.

Halligan pointed out that her firm, Selendy & Gay, is owned mostly by female partners. The firm’s strategy includes making sure that everyone has challenging work and undergoes “training in business development skills and how to network – even if you don’t play golf.” The senior lawyers in her firm conduct mock arguments with associates to give them specific feedback and help build their confidence.

Abdul-Malak agreed that one-to-one coaching and mentoring are effective tools.

Berkman pointed out that relying on hiring quotas to bring parity in a workplace will not change implicit biases. “You must step it up – by promoting yourself and challenging biased behavior,” she said. “And once you are there, you must be supportive of others” such as confronting biased behavior that junior colleagues might encounter.

Sometimes, “you have to just do it,” said Moskowitz. She noted that Judge Judith Kaye, the first woman judge of the New York Court of Appeals and its first woman chief judge, “changed the entire court system. She created the commercial division of the state Supreme Court; she changed family law to focus on children. She just did it.”

Berkman noted that best argument for diversity is that different perspectives help everyone. In her line of work, for example, having people with even a slightly different take on a situation “can save your life.” But fighting for diversity can be hard, she acknowledged. If you are “the token” in your workplace you might be reluctant to take a stand – it’s too risky. “We need you – women attorneys – as allies,” she said.

Legislating Diversity and Inclusion
Another panel reviewed recent legislation, including paid family leave, mandatory harassment prevention training, pay equity and anti-discrimination laws intended to interrupt biases and achieve workplace equality.

WILS Chair-Elect Sheryl B. Galler, Esq., Law Office of Sheryl B. Galler, and Renata Neeser, Esq., Littler Mendelson, moderated the discussion. Other panelists were Alnisa Bell, Esq., Seyfarth Shaw; Karen DeMeola, Esq., University of Connecticut School of Law; and John W. Hamlin, Esq., Marsh & McLennan.

Paid Family Leave
Galler summarized the recently enacted New York State Paid Family Leave Act. She noted that in New York State and California, which has its own paid family leave law, studies found that more men than women take leave to care for children.

Hamlin said that, from the perspective of many employees, “women take family leave, men do not.” Galler recounted being confronted with a hypothetical question: Why should a female colleague, who took maternity leave, have the same seniority as a male colleague? DeMeola added that, in her experience conducting firm-wide trainings on family leave, “half the room is crying, and half the room is angry.” She noted that firms fret about losing money, employees want to be able to take leave without harming their careers, and co-workers are concerned about having to cover for their absent colleagues.

The panelists agreed that employers need to encourage all employees to take family leave. “When more men also take advantage of family leave, it becomes normalized and expected,” Hamlin noted. “If a male manager urges male employees to take it that makes a big difference.” Neeser added that “it helps men see women differently.”

Bell described her firm’s plan, which removes the expectations for billable hours as a barrier to attorneys taking family leave. The firm “gives hours before leave and has a transition plan” for building up hours when the attorney returns, she added.

Sexual Harassment Prevention
Bell summarized the New York State requirements for sexual harassment prevention training. Galler mentioned that, while it is still very new, some training programs use virtual reality headsets to put people in other people’s shoes.

Bell explained the advantages of a strong anti-harassment policy. Complaints can cost companies a lot of money, and it is in their interest, she said, “to get rid of the harasser.” If the company doesn’t act, she advised being blunt: “Are you prepared to deal with the consequences?”

In the advent of #MeToo, Hamlin’s company developed a small-group training program. Still, he said, some men do not want to work with women for fear of #MeToo. The panelists agreed that such attitudes are never acceptable.

“We have to teach our sons to wake up to bias,” Neeser responded, “and to bring up examples” that show the complexities of bias – “and not rely on tropes.”

What if staff is reluctant to report incidents of bias or harassment to human resources because it is seen as the arm of the company?

What’s needed, said DeMeola, is a standalone entity for receiving reports. She also emphasized the importance of having allies in senior staff – especially for those who might feel powerless in an awkward situation and need a strong voice.

Galler said that companies also need “very robust anti-retaliation policies.”

Hamlin agreed, adding that lawyers who are bystanders to such incidents can be part of the problem. “We are trained in ‘it depends,’” he said.

“The laws provide that you can’t retaliate, but the truth is, it’s easier to prove retaliation than it is to prove bias,” said Neeser.

Anti-Discrimination Laws
Corporate culture is slow to change, said Bell, and companies risk losing employees that bring different viewpoints to the table – perspectives that companies need.

DeMeola noted that “professionalism” in corporate culture is based on a Euro-centric definition and disproportionately affects people of color, particularly in terms of their hair, and transgender/gender nonconforming individuals whose dress is not the defined norm. Bias is a factor even in resume review – “‘John’ gets called back more often than ‘Jamal,’” she said.

Hair is a huge issue for black people, said Bell, and she applauded New York’s Crown Act, which disallows discrimination based on hair.

Bell noted that when a firm or corporate culture fails to support diversity, “some people just opt out – although not everyone has that luxury,” Bell said. “I am hopeful that change will accelerate as the younger generation of attorneys moves up” into positions of authority.

Pay Equity
New York requires pay equity and no longer allows questions about salary history, said Neeser, which are steps forward. Hamlin pointed out that companies do not need to know an employee’s salary history to make an appropriate offer. He added that most corporations have a way of figuring out how much a job is worth, so “transparency would take care of the issue.”

“Still, when men have children, they get paid more. When women have children, they get paid less, and the pay gap is growing,” Neeser acknowledged. “We need equal pay for substantially similar work and to get there we need a federal baseline,” adding that the current patchwork of laws and regulations isn’t working.

All of the panelists agreed that recently enacted laws are moving us closer to workplace equality. But the laws are not enough without change on the ground. Galler noted that, incredibly, someone who heard about New York’s pay equity law asked her why a company would hire a woman, who will use family leave and childcare, if the company cannot pay her less than a man. Galler and the panelists agreed that such questions are an indication that we, as attorneys and business leaders, need to respond not only with laws but with education and efforts to change culture and attitudes.

Employers and employees, firms and clients all benefit when there is workplace diversity. Bell pointed to her own experience as an example. Because her firm “built in hours for me before and after [family] leave,” she stayed on partnership track and became a partner at her firm this year.

The Ethical Ramifications of Implicit Bias
How bias can impact the representation of clients and the handling of employment issues in the legal workplace was the focus of a panel moderated by WILS members Kathleen Lyons, Esq., AXIS Reinsurance, and Rosary Morelli, Esq.,
Raskin Morelli LLP, with panelists Laurie A. Kamaiko, Esq., Saul Ewing Arnstein & Lehr, LLP; Rachel H. Kim, Esq., Sompo International Holding Ltd.; Pery D. Krinsky, Esq., Krinsky PLLC; and Loren L. Pani, Esq. and Elliott J. Zucker, Esq., Aaronson Rappaport Feinstein & Deutsch, LLP.

The panel presented live enactments of situations involving implicit bias in the legal workplace and during depositions. Through these vignettes, Krinsky engaged the audience in a lively discussion of which conduct is ethically acceptable and which crosses the line.

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