Best Practice #7: Taking pro-active steps to check the hidden bias that will otherwise surely emerge in the context of compensation systems

The first step is to look very carefully at law firm compensation systems that are totally subjective. While these may work well in some small firms, they present very serious risks of gender and racial bias. This also have serious drawbacks from a business standpoint, which is why, as one consulting firms notes delicately, “Altman Weil’s consultants find it difficult to justify totally subjective systems. If a firm has a totally subjective system, benchmarking to assess whether it is creating racial and gender disparities is even more important.”

Even where a firm’s system is not totally subjective, subjectivity is an inevitable part of most firms’ compensation systems. If biases are unmonitored and unchecked, both women and attorneys of color often will find themselves having to “try twice as hard” to make half as much. This occurs, as noted above, because the successes of women (and the literature is much the same with respect to people of color) will tend to be overlooked or attributed to quirks of fate, while evidence of their failures and limitations will tend to be noticed, remembered, and interpreted as evidence of lack of merit. Again, this will happen even when the individuals in a given firm have no hostility or ill-will towards women or people of color, and believe in good faith that they are sincerely committed to advancing women and attorneys of color.

Luckily, employers can institute practices that control for cognitive bias. The goal is not to eliminate bias, which is impossible, but to teach people what assumptions they need to double-check. An efficient way to accomplish this in a law firm setting is to require training in the context of performance evaluation, given each year, to introduce the four basic patterns of gender stereotyping:

  • Prove it again!: When women have to prove their competence over and over again in order to be judged as competent as men.
  • Double bind: When women face social pressure to play a limited number of traditionally feminine roles—and encounter pushback if they don’t. Research shows that, too often, women who conform to traditional roles are liked but not respected, while women who do not conform are respected but not liked. This is important for all attorneys because they all weigh in on others’ advancement and compensation (be it of associates or partners).
  • Maternal wall: When motherhood triggers strong assumptions that women are no longer committed or competent.
  • Gender wars: When gender bias against women turns into conflicts among the women.

The committee that decides compensation needs additional training to ensure that they do not penalize women for selfpromotion, do not discount women’s successes, do not award men more compensation “because they have a family to support” or award women less compensation “because they have someone to support them.”

Many programs and consultants are available to provide this training. Another important resource is the American Bar Association’s Commission on Women in the Profession’s Fair Measure: Toward Effective Attorney Evaluations.

In addition, studies show that procedures that require the formal articulation of reasons for a decision provides a check on bias, because then people stop and self-check to examine their assumption.This recommendation poses a challenge for compensation systems that traditionally have operated in the closet. Unfortunately, that kind of decisionmaking opens the door wide to unexamined bias, particularly in an environment in which there are relatively few women, people of color or other diverse attorneys.

The literature also stresses that putting someone in charge of diversity who has access to leadership is the single most effective way to achieve diversity.

A minimum first step is to introduce a formal metric, formally disseminated, that reports the breakdown of women and people of color in tiers of compensation. This will no doubt be a controversial proposal but, again, “if you’re not keeping score, you’re only practicing.”