Unconscious bias in a business can impair good decision-making. Dr Zara Whysall looks at its impact on decisions about appointing and promoting leaders, and how law firms can minimise unconscious biases

Note: Last year, the Private Client Section ran a survey focused on members’ inclusion and diversity needs, to help us to identify, among other things, the key issues impacting your career progression. One of the challenges identified was unconscious bias. Key obstacles highlighted included social and educational backgrounds, non-traditional qualification routes, availability for extended-hour working, and career breaks.

We hope this article will help educate both employers and those challenged by this issue to overcome unconscious bias.

Dr Zara Whysall

Cognitive biases and fixed assumptions can impede decision-making around leadership selection and development in many organisations, including law firms. In this article, I share some insights from our 2018 research on this and offer some ideas for addressing unconscious biases in your firm.

Key unconscious biases that can impact decisions around leadership selection and performance management include:

  • The sunk costs fallacy: we persist with a course of action because of the money, time and effort invested so far, despite the low likelihood of recouping those costs.
  • Personal liking bias: if we like someone, we tend to view them as more capable than they actually are.
  • Attribution errors: we provide biased reasons for the causes of events, typically in a way which is self-serving. We’re more likely to attribute negative events to external, uncontrollable factors.
  • Optimism biases: we give people the benefit of the doubt, rather than putting in place definitive performance metrics and processes for monitoring performance against them. This obscures the need for more proactive performance management, often simply prolonging the issue.

Another common assumption is that leadership performance is improved most quickly by firing and replacing senior staff.This can mean that even among organisations willing to make significant investments to enhance performance, many don’t invest in developing their senior staff. These biases have a significant impact. 61% of respondents to our research admitted that they find it difficult to be decisive when it comes to making decisions relating to performance, with 43% admitting they have appointed or retained a leader who was not right for the role.

How to reduce biases

Traditional training programmes – about the importance of avoiding discrimination, the issues surrounding lack of diversity, and the potential benefits provided by diversity, for example – are often ineffective in reducing unconscious bias. Frank Dobbin and Alexandra Kalev, in ‘Why Diversity Programs Fail’ (Harvard Business Review, 2016), found that: “The positive effects of diversity training rarely last beyond a day or two, and a number of studies suggest that it can activate bias or spark a backlash.”

To reduce implicit biases in selection and promotion decisions, review your decision-making processes.

  • Screen CVs and other applicant information ‘blind’; omit factors irrelevant to job performance, particularly those known to trigger stereotypes, such as candidate name, age or gender.
  • Interview panels should be diverse, and interviews structured and situational, incorporating relevant data where available, to encourage a focus on relevant factors.
  • While ‘warm-up’ conversations are helpful to relax candidates, irrelevant social information can be introduced, potentially triggering ‘ingroup’ biases. Could the warm-up be conducted by an individual not involved in the decision-making process?
  • Agree relevant metrics and, before conducting interviews, commit to hiring or promoting the candidate whose score is the highest. Don’t let intuition or liking override the data. Stick to what the scores tell you.

In relation to promotions, put processes in place to assess suitability and support development – including, for instance, coaching, onboarding and team effectiveness interventions. Development is a much safer path to improved performance and effective succession planning, given the legal implications of firing leaders, the time it takes to identify suitable replacements and get them up to speed, and the risks associated with bringing in outsiders.

Finally, look at your organisational culture. It plays an important role in sustaining implicit biases, given its normative influence on attitudes, beliefs and behaviours. Ask yourself the questions below:

  • Are you missing environmental cues? For instance, corridors with pictures of white, male past executives may trigger doubt that women and minorities can advance in your firm.
  • What types of behaviours are valued in your culture? This will explicitly or implicitly feed into recruitment and promotion decisions, but may not be relevant to effective performance.
  • Do you place undue weight on an individual’s ‘fit’ with the prevailing culture? Which elements of your culture are people expected to fit with, and why? What evidence do you have that homogeneity on any level would be beneficial to organisational performance?

Unconscious biases are part of human nature and difficult to avoid. Businesses must implement proper processes to ensure greater rigour in human capital decision-making, to minimise disruptions further down the line that will come at the cost of the firm.

This article was first published in the July 2019 edition of Managing for Success, the magazine of the Law Society’s Law Management Section.