Diversity Articles

MCLE Specialty Credit

Eliminating Bias in the Legal Workplace and Beyond

By:  Karen V. Clopton

"Today our schools are as segregated as they were in 1969, the year after Dr. King died.  Race is the biggest challenge we face, and we have proven unequal to facing it."

Julian Bond, Chairman of the Board, NAACP (2008)

Race is also one of the biggest challenges facing the legal profession today.  In light of the California Attorney General’s renewed opposition to Proposition 209, recent United States Supreme Court decisions, and the 50th anniversary of California’s premier civil right law -- the Fair Employment and Housing Act -- a discussion of what state and local bar associations, law firms, law schools, and individual lawyers can do to stem the tide of increased segregation and prejudice in the legal profession in California is not only timely but profoundly necessary.

Recently, I was asked how one eliminates bias in the legal profession when everyone has biases.  The first step is to acknowledge the fact that everyone has biases.  The next step is to agree on common definitions and language to discuss those biases.  Finally, we must reach an agreement about the priority of eliminating obstacles to greater participation in our profession.

DEFINITIONS

When addressing bias issues, we often use terms that we assume everyone readily comprehends, such as stereotype, bias, fairness, prejudice, diversity and integration.  We often assume we have the same goals when discussing eliminating bias, when in fact “it depends” is often the final answer.  For example, the term “stereotype” has different definitions depending upon the context.  The common Webster’s Dictionary definition of these terms reveal a stereotype is a conventional, formulaic, and oversimplified concept, opinion or belief.    A stereotype can also be a person, group, event or issue considered to typify or conform to an unvarying pattern or manner, or lacking any individuality.  Stereotypes provide an easy way to think when confronted with new data.

Bias, which is a preference or inclination for or against a particular group, can also make thinking easier.  We have all heard someone say he did not harbor ill will toward a specific group but “prefers” his own kind.  While bias can be rationalized as personal preference, prejudice is an irrational suspicion or hatred of a particular group.  Some would define bias and prejudice the same way, while others would make a distinction.  Nonetheless, the impact remains the same:  the group in power excludes the other groups.

Eliminating bias in the legal profession often includes an imperative to diversity.  In fact, diversity has become a ubiquitous term and has even become a profession in its own right as demographics shift, power transitions, and ethical concerns arise.  Yet the diversity movement is fairly new.  During the early civil rights movement, “integration” was considered the antidote to racism and segregation.  Thus, integration was equated with desegregation.  However, there is an inherent opposition between these two concepts.  Integration is a harmonious whole, a homogeneous melting pot.  On the other hand, diversity is a conglomeration of the disparate, a quilt where each piece is different but all are sewn together for a common purpose.

Elimination of Bias as a Moral and Ethical Imperative

The Code of Professional Responsibility obligates practitioners to conduct themselves in a non-discriminatory manner.  This obligation should translate into positive action while reinforcing the elimination of bias in the legal profession.  The Code is as follows:

Rule 2-400 Prohibited Discriminatory Conduct in a Law Practice.

(A) For purposes of this rule:

(1) "law practice" includes sole practices, law partnerships, law corporations, corporate and governmental legal departments, and other entities which employ members to practice law;

(2) "knowingly permit" means a failure to advocate corrective action where the member knows of a discriminatory policy or practice which results in the unlawful discrimination prohibited in paragraph (B); and

(3) "unlawfully" and "unlawful" shall be determined by reference to applicable state or federal statutes or decisions making unlawful discrimination in employment and in offering goods and services to the public.

(B) In the management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in:

(1) hiring, promoting, discharging, or otherwise determining the conditions of employment of any person; or

(2) accepting or terminating representation of any client.

(C) No disciplinary investigation or proceeding may be initiated by the State Bar against a member under this rule unless and until a tribunal of competent jurisdiction, other than a disciplinary tribunal, shall have first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred. Upon such adjudication, the tribunal finding or verdict shall then be admissible evidence of the occurrence or non-occurrence of the alleged discrimination in any disciplinary proceeding initiated under this rule. In order for discipline to be imposed under this rule, however, the finding of unlawfulness must be upheld and final after appeal, the time for filing an appeal must have expired, or the appeal must have been dismissed.

In order for discriminatory conduct to be actionable under this rule, it must first be found to be unlawful by an appropriate civil administrative or judicial tribunal under applicable state or federal law. Until there is a finding of civil unlawfulness, there is no basis for disciplinary action under this rule.

A complaint of misconduct based on this rule may be filed with the State Bar following a finding of unlawfulness in the first instance even though that finding is thereafter appealed.

A disciplinary investigation or proceeding for conduct coming within this rule may be initiated and maintained, however, if such conduct warrants discipline under California Business and Professions Code sections 6106 and 6068, the California Supreme Court's inherent authority to impose discipline, or other disciplinary standard. (Added by order of Supreme Court, effective March 1, 1994.)

RACE, POLITICS, AND THE LAW:  A BRIEF TIMELINE

When we deny history, we repeat mistakes.  When discussing the elimination of bias, I have always found it useful to include a brief timeline of race in American history.  There are critics of this approach who state that everyone knows American history and that it has nothing to do with how we should proceed today.  I must beg to differ.  As physicist Albert Einstein noted, “the distinction between past, present, and future is only a stubbornly persistent illusion.”

As the Report of the Brown University Steering Committee on Slavery and Justice notes:

“If there is a single common element in all exercises in retrospective justice it is truth telling. Whether justice is pursued through prosecution, the tendering of formal apologies, the offering of material reparations, or some combination of all three, the first task is to create a clear historical record of events and to inscribe that record in the collective memory of the relevant institution or nation.”

Another criticism is that diversity in the legal profession encompasses many more groups and concerns than just the old “black and white” race issue.  Of course, one of our goals is to increase access and fairness to all, including the previously disenfranchised.  However, the “original sins” have left an indelible imprint on the American psyche and ignoring the past will not assuage those sins nor alleviate their legacy.  The legacy of slavery and forced labor in America is profound and in order to redress past wrongs, we must actually confront them.  We must tell the truth.

As we look back to 1619, slaves from Africa, indentured servants from England, and British colonials settled in the American colonies.   The indentured and the enslaved were treated ostensibly the same, except the indentured started to integrate while the enslaved became the most easily identifiable.  During the next 250 years, the law recognized slavery as lifelong bondage, matrilineally passed down, with skin color as an emblem of slavery.  The systematic elimination of indigenous people began at this time as well.

In 1776, Thomas Jefferson (a slaveholder) ironically wrote in the Declaration of Independence that “All men are created equal…”  Africans fought with the British forces and with the colonists, both having promised freedom and equality.  Slavery continued in the new republic, reinforced by the United States Constitution considering slaves as “three-fifths” human beings in a compromise gesture among the drafters, the sainted “Founding Fathers.”

During the Civil War, the Emancipation Proclamation freed slaves in territory held by the Confederate states.  Following the war, three landmark amendments were added to the Constitution: the 13th amendment abolished slavery, the 14th amendment provided for equal protection under the law and the 15th amendment provided:  “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

While the Reconstruction era brought some hope, the reality, as fully documented in Douglass Blackmon’s brilliantly researched “Slavery by Another Name,” was that nothing much changed and under color of law, the enslaved remained in the same condition as before the war.  In 1896, the United States Supreme Court endorsed separate treatment based upon skin color in Plessy v. Ferguson, 163 U.S. 537 (1896).  This remained the law until Brown v. Board of Education, 347 U.S. 483 (1954), when the court found that the concept of separate but equal is inherently unequal.

Segregation persisted in the legal profession even after Brown, with the American Bar Association remaining exclusively white until 1960.   In the meantime, African American attorneys had formed their own bar association, the National Bar Association.  Today, bar associations no longer deny membership based on race.  Nonetheless, many previously disenfranchised groups have established their own bar associations, such as La Raza, the Asian Pacific Bar, and local minority bar associations through the country.  However, despite the move toward greater diversity in the legal profession nationwide, California appears to be moving in the opposite direction, partly as a result of Proposition 209’s prohibition of affirmative action by public entities.  Affirmative action and quotas (both always double edged swords) have become anathema to most.  As a result we must formulate new language and communication skills in order to counteract the “doublespeak” and “newspeak” of those who wish to reinforce the status quo and exclude the disenfranchised.

CALIFORNIA ANTI-DISCRIMINATION LAWS

In California, we have moved beyond prohibition of discrimination based merely on race and color.  A cursory review of California’s labor and employment laws (codified in the Fair Employment and Housing Act, the Labor Code, and the Business and Professions Code, reveals over 35 prohibited bases of discrimination, including:

• Age
• AIDS and related conditions
• Ancestry
• Bankruptcy
• Citizenship or citizenship status
• Color
• Crime Victim
• Disability or perception of disability (mental or physical)
• Filing a worker’s compensation claim
• Garnishment because of a single debt
• Illiteracy
• Jury Duty Service
• Lactation
• Marital status
• Medical condition, including cancer in remission
• Missing work to accompany a child to school who is under threat of suspension
• National origin
• Participation in union activities
• Personal relationship with a person employed by a competitor
• Political beliefs
• Pregnancy
• Race
• Religion
• Sex
• Sexual Orientation
• Taking up to 40 hours off each year to attend school with child
• Taking time off to perform emergency duty as a volunteer firefighter
• Use of family and/or medical leave
• Use of leave
• Veteran status
• Victim of domestic violence

This list is daunting, and not exhaustive, but it speaks volumes about individual rights, the collective and community good, and the broadening of protections, especially here in California.  In many ways, many of us are merely temporarily abled, as we age, we all are protected against age discrimination, in other words, time and health issues impact all of us.

PROPOSITION 209 AND ITS IMPACT ON THE LEGAL PROFESSION

“I will never forget that I became chairman of the Joint Chiefs of Staff because of the (Massachusetts) 54th Regiment (in the Civil War).  I was not the first who was qualified, and I was not the first who had the potential.  I was the first to come along after the government had secured our right to equal treatment and affirmative action so I could be measured by my performance and not by the color of my skin.”

Colin Powell, retired United States General, former Secretary of State (2003)

“But for affirmative action laws, God knows where I would be today.”

United States Supreme Court Justice Clarence Thomas (1983, in a speech Equal Employment Opportunity Commission staff)

The California Constitution was amended by Proposition 209 in 1996.  Proposition 209 was passed by 54.6 percent of California voters,  and prohibits State and local government agencies from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, education, or contracting.  The State does not however prohibit the collection of statistical data and reporting of underutilization by racial or gender categories to monitor employment practices.  The State also “does not prevent government agencies from engaging in inclusive public sector outreach and recruitment programs that, as a component of general recruitment, may include, but not be limited to, focused outreach and recruitment of minority groups and women if any group is underrepresented in entry level positions of a public sector employer.”  Attorney General Edmund G. Brown, Jr.’s letter brief to the California Supreme Court on April 22, 2009 regarding the constitutionality of Proposition 209 is an excellent starting point for continued concern, research, public discourse, and analysis of the harmful impact of Proposition 209.

Since 1996, some research undertaken by academics and advocacy organizations has evaluated the effects of ending affirmative action in local public contracting as well as the status of equal access to public higher education.    Most alarming is the precipitous drop in matriculation of minority applicants to professional schools in California, specifically law schools and medical schools.  (California Medical Schools Continue to Have Low Enrollment among Minority Students, Medical News Today, 24 July 2008; Minority Enrollment at Law Schools Is Faltering, the National Law Journal, February 06, 2008)

This has created a significant decline in the number of minority physicians and attorneys  As a result, historically underserved minority communities have even fewer healthcare and legal resources, as well as fewer role models for youth.  This disparity has far-reaching consequences beyond individual opportunity to potentially disastrous results for the greater community.

What impact has Proposition 209 had on the legal profession in California?  According to the American Bar Association, after reaching a peak in 1994, the number of African-American law school students has significantly declined.  In a recent study by the State Bar of California, the number of African-American members declined from 2.4 percent in 2001 to 1.7 percent in 2006 (in 1991 it was 2%).  Other minority representation also declined with the exception of Hispanics, who slightly increased from 3.7 percent to 3.8 percent.  The State Bar’s Council on Access and Fairness issued its exhaustive “Report and Recommendations - Diversity Pipeline Task Force” the 2006 Report and resource guide of various diversity programs focuses on entry and advancement in the legal profession and obstacles minorities face in our profession.

The Final Report of Results for the State Bar of California Survey, conducted in 2006 revealed:

This preliminary data clearly links the implementation of Proposition 209 with the precipitous decline in public law school enrollment of minority students and the concomitant decline in minority attorneys in California.  As a result of Proposition 209, the number of minority lawyers available to serve as public defenders, prosecutors and judges in the criminal justice system has sharply declined.

The number of minority attorneys in large private firms has also significantly declined.  Further research needs to be conducted into the impact of the lack of minority attorneys in the state’s district attorney offices and the role of bias in the administration of justice and prosecutorial discretion in sentencing, plea bargains, and diversion program placement and referral.  On a positive note, women have made some gains and represent nearly half the attorneys 35 and younger in California. Demographic data compiled in 2007 by the State Bar Diversity Task Force Court's Working Group revealed that California's diverse population was not adequately represented in the state's judiciary.

A goal of The State Bar Council on Access & Fairness is to assist the Governor in encouraging the recruitment of more women attorneys, attorneys of color, gay and lesbian attorneys and attorneys with disabilities who meet all the qualifications and eligibility criteria to submit an application to the Bench.  The State Bar is very careful not to utilize any of its mandatory dues on its diversity efforts.

The decline in minority attorneys has not been adequately addressed by state agencies, such as the State Bar, due to Proposition 209.  For example, Proposition 209 forced the State Bar to curtail many of its diversity outreach programs, including support for minority bar associations and minority student activities.  As a result, local bar associations have instituted diversity outreach and minority scholarship programs to reverse the situation.  Both the Bar Association of San Francisco and the Los Angeles County Bar Association have diversity initiatives.

WHAT YOU CAN DO TO ELIMINATE BIAS IN THE LEGAL PROFESSION

Education

• Educate yourself
• Research your own ethnic background and those of your relatives
• Read books by authors from different ethnic backgrounds
• Travel
• Take courses about other cultures
• Learn about American history

Observation

• Observe how other ethnic or gender groups are treated
• Notice whether people are comfortable talking about differences
• How does your workplace treat people who are different?
• How does your neighborhood treat people who are different?
• Notice whether certain groups are missing in meetings, leadership positions, job training opportunities, etc.

Familiarity

• Acquaint yourself
• Get to know co-workers and neighbors from different cultures
• Attend local cultural fairs and programs
• Learn how to prepare culturally diverse foods and share with others
• Learn basic conversational greetings in another language
• When traveling immerse yourself in the local culture

Intervention

• Stand up for yourself and others, speak up when you witness racially motivated or sexist conduct
• Let the speaker know that such speech or conduct is offensive
• Let everyone know that you do not agree
• Actively refute others’ denial that racism or bias exists

10 THINGS TO DO THAT WILL ENCOURAGE DIVERSITY IN THE LEGAL WORKPLACE

1. Make it clear that you want diversity
2. Diversify how you recruit and where you recruit
3. Build on the diversity you have/create a nucleus
4. Support activities and organizations that support diversity
5. Create a mentorship system/be a mentor
6. Make sure diversity is more than numbers
7. Diversify your staff
8. Establish diversity in management/senior levels
9. Reward diversity
10. Become comfortable with diversity

This article is based upon MCLE presentations on the elimination of bias in the legal profession.