"You're late," he exclaimed. It was 30 minutes before an important deposition, and the well-dressed gentleman checking in next to Shevon at the reception desk turned and repeated himself. "You're late!" "Pardon me," Shevon replied, surely he was mistaken. "You said you're here for the deposition. We require our court reporters to arrive 45 minutes before the deposition begins. You're late!" Before another word could be spoken, the gentleman spun on his heels and proceeded to a conference room. When Shevon entered the room a few minutes later, it was clear that he was confused, as the actual court reporter was seated in their usual spot near the head of the table, equipment at the ready. "Why are there two of you," he asked. Shevon extended her hand, "I represent the defendants and will be taking today's deposition." "I represent the plaintiffs. I thought you were …" he trailed off. "No, I'm not the court reporter," Shevon replied. "I'm sorry, you just don't look like a lawyer," he said in an apologetic tone. "Well, I'm sure you and your clients will feel differently by the end of the day. I'm ready to get started when you are!"

Unfortunately, adversaries, clients, and colleagues alike have mistaken us both for non-lawyer staff on countless occasions. Indeed, it is a common occurrence that most African American women attorneys in particular must navigate in law firm, corporate, and government settings. In a recent study from the Minority Corporate Counsel Association, women of color reported that they had been mistaken for administrative staff, court personnel, or janitorial staff at a level 50 percentage points higher than reported by white men. White women and men of color reported this bias at a level 44 and 23 percentage points higher than white men respectively. You Can't Change What You Can't See: Interrupting Racial & Gender Bias in the Legal Profession, Executive Summary at 7-8. While this form of bias may seem like a harmless case of mistaken identity to some, for female and diverse attorneys the refrain is a constant reminder that this profession was not built with us in mind and has not evolved to include us despite the industry's focus on diversity over the last decade. At least for now, we are seen as "other"—different from what some believe attorneys should be.

In addition to being labelled as non-lawyer staff, minority attorneys are often confused for other members of the same minority group. We have both been mistaken for women that do not look like us (different complexions, height, build, hair, etc.) and work in unrelated practice groups or even different offices, by the same colleagues continually even after numerous corrections. Such errors are insulting and strongly imply that the colleague has not bothered to view the diverse attorney (or others within their minority group) as individuals, and in some respects sees all colleagues from the same minority group as interchangeable.

Determining if, when, and how to challenge these and other artificial but deep-rooted biases are conundrums female and diverse attorneys encounter frequently. Although implicit bias training has become the latest benchmark and presentations on inclusion are all the rage, diverse and non-diverse attorneys alike are often unsure of how to address bias, in real-time, as it occurs. This article highlights tactics we have observed and/or employed when we have encountered bias, and aims to offer attorneys from all backgrounds techniques for challenging current industry standards, supporting their diverse colleagues when it counts the most, and fostering a more inclusive environment.

Straight Up, No Chaser

When one faces an overt, unambiguous instance of bias or discrimination, we believe it is always appropriate to counter with direct language, even if (especially when) you are not the target. "That was inappropriate." "Your comment makes me uncomfortable." "That sentiment goes against our organization's core values." No matter how you phrase it, an immediate response is necessary. We cannot stress enough how important it is to directly combat racist, sexist, homophobic, and other discriminatory behavior when it occurs. Failing to clearly and unequivocally register opposition signals to the actor and others present that you condone such behavior, and that your organization is a safe space to express discriminatory views. If the setting is not conducive to facilitating a fulsome discussion, schedule a time to address the situation in a meaningful way.

Another situation that warrants a "straight up, no chaser" response is when a micro-aggression invades one's personal space. We cannot count the number of times someone in a professional setting has tried to touch our hair. Similarly, pregnant women often suffer unwanted belly rubs as they approach maternity leave. While some may feel most comfortable using the "kindness" and "humorous" approaches described below, we think it is worth underscoring that targets of this type of behavior should never feel required to temper responses to unwanted physical contact.

Micro-Affirmations

In the face of micro-aggressions, implicit bias, or other "slights", consider micro-affirmations to contradict an actor's assertion. If a client calls an associate "baby faced", highlight that the associate led the virtual law firm teams for your last three MDL productions. When a colleague questions if a female attorney should be assigned to a trial team because she has children, remind them that she handled several depositions for key witnesses last week. (Perhaps also raise that the male associate on the trial team has small children, but that has never factored into discussions about his assignments.) Challenging implicit bias with tangible examples that contradict the actor's assertions, can not only interrupt bias before it has a discriminatory impact, but can also go a long way to changing the actor's perspective and demonstrating that you (and by extension your organization) are willing to acknowledge bias and take action to combat it.

Kill Them With Kindness

One of the most common micro-aggressions female and diverse attorneys experience is being asked to perform administrative tasks because the actor assumes they are a secretary, hostess, or custodian. "I'm sorry, but I have to prepare for my presentation to the executive team this afternoon. I'm sure my assistant would be more than happy to help." "James is here to assist with the witness, but we can help you find a secretary or host to get more water." Some may call this passive-aggressive, but highlighting the actor's erroneous assumption without overtly calling out their bias can be a useful tool for addressing the "slight" in a non-confrontational manner, especially when the actor is a partner, supervisor, or client.

The Humorous Retort

Using humor to address any form of bias or discrimination is a tricky and sometimes treacherous endeavor. However, in certain situations a humorous retort can quickly and effectively dismantle bias and micro-aggressions. The humorous retort is only effective when you have a relationship with the actor and can ensure that your attempt to be funny does not further alienate the target of the bias.

No matter the approach you take to confront bias, always consider raising the situation with others that were not present, but might have valuable input. The billing attorney for the client that made the offensive remark? The chair of an affinity group? Diversity and inclusion officers? Your practice group or team lead? If the offensive action or bias was not directed at you, consider reaching out privately to the attorney that was the target to ask if there is anything you can do to address the situation.

For many attorneys, in particular African American women, learning how to address micro-aggressions, implicit bias, and even unambiguous discrimination are necessary, albeit unfair and unfortunate, facets of our careers at law firms and corporations alike. Some may ask, "Why not confront every instance of bias head-on? Why not call out bias directly in every situation, even if there is a risk that the actor will be defensive or uncomfortable?" Regrettably, in an industry built on hierarchies and developing internal and external client relationships, the direct approach can result in irreversible backlash. Many women and minority attorneys recognize that they may be unfairly characterized as difficult to work with or develop a reputation for being hypersensitive, angry, or aggressive. Such characterizations would adversely affect an attorney from any background, but these labels are more frequently applied—perhaps based on common workplace and societal stereotypes—to women and minorities that voice concerns about bias and micro-aggressions.

While most recognize that creating an inclusive environment should not be the diverse attorney's burden to bear, it goes without saying that failing to navigate a client's, colleague's, or court's bias "successfully" can negatively impact an attorney's career. We hope that by identifying some of the many methods of addressing common instances of bias, attorneys from all backgrounds will be empowered to counteract it in whatever way they feel most comfortable and appropriate. If we all take a role in combating bias, on both individual and institutional levels, the legal profession will undoubtedly make tangible strides towards creating the inclusive environment that our clients demand and all colleagues deserve.

Shayon T. Smith is assistant general counsel, global litigation at The Hershey Company, and Shevon D.B. Rockett is a litigation partner at Dorsey & Whitney.