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Despite the legal industry's efforts to promote racial and gender diversity in the profession, a new report said implicit gender and racial biases are systematically holding women and minorities back—and a new set of tools is needed to combat the problem.

The study, “You Can't Change What You Can't See,” was conducted by the Center for WorkLife Law at the University of California, Hastings College of the Law in partnership with the The American Bar Association's Commission on Women in the Profession and the Minority Corporate Counsel Association (MCCA). The goal? Understand how law firm lawyers and in-house counsel experience gender and racial bias, and why past efforts have failed.

“There was nothing that was surprising,” MCCA president and CEO Jean Lee said of the survey results. “If anything [...] it just confirmed a lot of what we have been hearing and it validates a lot of those experiences of people of color [and] women of color in our profession.”

First launched in April 2016, the survey asked its 2,827 respondents about implicit bias in the workplace, including hiring, assignments, business development, promotions and compensation as well as questions about sexual harassment.

Women of all races and men of color in in-house positions reported lower levels of bias than those in law firms, whereas white men reported lower levels of bias in law firms than they did in-house.

White women and women and men of color all reported that they had to go “above and beyond” in their work to get the same amount of recognition and respect as their colleagues, with 63 percent of women of color responding in the affirmative.

Overall, women of color reported the highest level of bias in almost every workplace scenario, the survey found.

Fifty-eight percent of female attorneys of color and half of white women reported being mistaken for administrative staff or janitors, as compared to only seven percent of white men.

Two-thirds of women of color said they were being held to a higher standard than their colleagues. Some 53 percent of women of color reported having equal access to high-quality assignments as compared to 81 percent of white men.

The survey also found significant bias when it came to parental leave. Woman of all races reported being treated worse after having children by being passed over for promotions, given low-quality work, paid less and being unfairly disadvantaged for working part-time or having a flexible schedule.

About half of people of color, 57 percent of white women and 42 percent of white men agreed that taking parental leave would negatively impact their career.

The study also looked at parity with respect to compensation and found large amounts of bias reported by white women and women of color. Nearly 70 percent of women of color and 60 percent of white women said they were paid less than their colleagues with similar seniority and experience, contrasted with 36 percent of white men who reported the same.

The survey also found that in-house white women reported roughly the same amount of compensation bias as their law firm counterparts.

“I do think that the experience is better in-house overall, but it's modest at best,” Lee said, noting the MCCA's 2017 Annual General Counsel survey that found that minorities only make up 11 percent of general counsel at Fortune 500 companies.

About 25 percent of women reported sexual harassment at work, including unwanted physical contact, sexual comments and/or romantic advances. But more than 70 percent of all groups surveyed said they've encountered sexist comments, stories and jokes.

'Interrupting' Bias

Based on their findings, researchers compiled two “Bias Interrupters Toolkits”—one for in-house departments and the other for law firms—that offer guidance on how to overcome entrenched, implicit bias in hiring, assignments, performance evaluations and compensation.

“We are going to work with our members, firms and companies to help them implement these strategies,” Lee said. 

Ultimately, Lee said the survey provides convincing evidence that bias is persisting and offers real solutions. She said legal departments and law firms should see it as a chance “to think a little bit more about the policies that may negatively impact women and people of color in the profession,” and take action. 

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