May 6, 2019
Implicit Bias and How it Affects the Practice of Law: The Cutlers Provide an Informative and Entertaining Start to the Forum
BY: Chris Fortier
Coverage of the 2018 Forum on Diversity and Inclusion in the Legal Profession
The Forum on Diversity in the Legal Profession started emphatically with Keith and Dana Cutler of “Couples Court with the Cutlers.” The Cutlers provided insight, intelligence, relatability, and chemistry to this “real talk” presentation. It focused on how to not step on one another’s toes and educated attendees on the difference between implicit bias and microaggressions, focusing on the grey areas to provide valuable advice. The program was based on the belief that no one wants to marginalize others, nor be marginalized.
The
Cutlers took the attendees through examples of statements to see if
they are implicit bias. They provided four choices (“I don’t see color.”
“You are so articulate.” “You should be good at this.” “I went to the
store the other day they gypped me out of my discount.”) and asked the
attendees to choose the one statement that was implicit bias. The
attendees thought all the statements were implicit bias but they could
choose only one! While “You are so articulate” is the most obvious
example because it shows the underlying expectation that they were not
articulate, “I don’t see color” is another example. You are saying you
do not see their life experiences. “You should be good at this” means
that you are expected to be something based on your race or other
external characteristic. “Gypping” comes out of word gypsy who were
thought of as being thieves. Does denial of discount mean a theft?
Possibly not.
The
Cutlers noted that the Judicial Canons and the Code of Professional
Conduct both indicate that if you provide an argument as an appeal to
improper bias or prejudice, and the judge acts on it, such an act may
constitute misconduct. Prohibition on expressions manifesting bias or
prejudice extends to out of court behavior. Rules such as Virginia Rule
of Professional Conduct 8.4(e) and ABA Model Rule 8.4(g) address these
issues.
The
Cutlers helped the attendees distinguish microaggressions and implicit
bias using memes to illustrate the concepts that reflected life
experiences. A microaggression is a statement, action, or incident that
shows as an aggression. This is an outward action based on/rooted in
biases and will almost always a negative impact. Derald Wing Sue, Phd.,
in Psychology Today,
defines microaggressions as “the everyday verbal, nonverbal, and
environmental slights, snubs, or insults, whether intentional or
unintentional, which communicate hostile, derogatory, or negative
messages to target persons based solely upon their marginalized group
membership.” The Cutlers analogized microaggressions to mosquito bites.
These can happen innocently or where you do not even realize that you
are doing it. However, these can annoy those who are bitten, and some
populations are more susceptible to these bites (microaggression) than
others. For example, you are in a law firm, you are looking to get a job
done. You grab the first person you see, they get the job done. You get
comfortable with that person. However, if you do not give that chance
to a female or minority, or LGBT person, they do not get that chance to
prove themselves. If you are in position of responsibility, make a point
to reach out to diverse populations. The Cutlers encouraged attendees
to make a point to invite everyone in a firm to projects, events, and
even lunch.
The Cutlers explored implicit bias by noting that it can go both ways. According to the Perception Institute,
“the term ‘implicit bias’ to describe when we have attitudes towards
people or associate stereotypes with them without our conscious
knowledge.” People of color’s implicit bias can keep them out of their
zone, just like it does for white people. It can keep people from being
adventuresome. Implicit bias is how we think, can have neutral or
positive outcome, not a conscious decision to be biased to which you are
comfortable.
They
showed the example of a painting in a restaurant in another country
that had panda bears with sombreros. The restaurant was previously
Chinese and then became a Mexican restaurant as the owners repurposed
the paintings for the new restaurant. Would the picture be racially or
ethnically insensitive? The attendees had a mixed response and provided a
great discussion from the different viewpoints. The attendees knew the
context of the picture, and viewpoints were different across the races
of the attendees.
The
Cutlers then focused the discussion on what an average person can do
daily. When you are blind to something, you cannot see it. It is about
being a courageous collaborator on a microcosmic scale. People have to
be honest and you may not always like it. They noted that “you have to
make a space to share without feeling criticized or judged. They said
that this can be accomplished by being gracious and direct, listening,
encouraging expansion, and suggesting exploration.”
The
Cutlers encouraged attendees to be “micro-resistant” by diversifying
social media follows and likes, going to diversity events, and “seeing”
microaggressions when they occur. When you see a microaggression, they
encouraged calling it out. They also encouraged committing to personal
growth and change, being open to different viewpoints, listening,
getting comfortable with being uncomfortable, and listening with your
heart and head. As lawyers, the Cutlers urged us to go to different
ethnic events, join a diverse bar (and go to the meetings), read from a
different viewpoint, go to a different worship service.
With
the Cutlers’ presentation complete, the forum’s attendees were ready to
dive into the deeper issues of diversity and inclusion in the legal
profession.