When All Efforts Fail to Retain Them, Unintentional Biases May Be at Work

New York Law Journal
By Ellen Ostrow
May 05, 2008

Rates of associate attrition from the largest law firms in the United States are higher than ever, in spite of years of efforts to reduce them. As associate compensation has soared, the tenure of these well-paid young attorneys at their firms has become ever shorter. According to research conducted by the NALP Foundation, almost 80 percent of attorneys at large firms leave within five years of being hired. Minorities and women depart their firms at much higher rates than do non-minority attorneys. Trying to find a woman attorney of color still at her original large law firm employer eight years after being hired would prove more challenging than finding the proverbial needle in a haystack.If affinity groups, mentoring programs, reduced-hours policies, on-site child care, opportunities to trade money for hours and diversity training fail to stem the exodus of associates from large firms, why aren't these efforts producing their desired effects?Women and attorneys of color share with white male lawyers many reasons for leaving, including the assumption that work and life are a zero-sum game; mind-numbing assignments that have little to do with their reasons for pursuing a legal career; and the slim odds of making partner, along with a lack of perceived control over the factors ultimately influencing that decision. Large firm culture continues to cling to norms established by the white men who created and continue to dominate private practice. Current billable-hours requirements require male and female attorneys to choose law over life. As a result, many associates entering firms begin their tenure with a plan to leave after paying down their law-school debt. When, in my capacity as a consultant, I conduct focus groups of associates, it is now rare to hear any aspirations to partnership. Wealthy, burned out partners paying multiple alimonies do not inspire longevity among most junior attorneys.However, diverse attorneys, more than their white male counterparts, bump up against other cultural norms that have been part of law firm mores for so long that they appear to be professional requirements rather than preferences or the way things have always been done.What Are Unintentional BiasesIndeed, I strongly suspect that cultural assumptions - normative in law firms and in the larger social structure in which they are embedded - and the self-fulfilling prophecies to which they lead, play a significant role in many failed efforts to retain diverse attorneys.In particular, unintentional biases may lead many women and attorneys of color to leave their firms. Psychological research indicates that unintentional biases arise from the normal human tendencies to categorize things and people into groups, to prefer familiar things and similar people and to cognitively simplify our complex world. These mental processes evolved no doubt due to their survival value (e.g., it's essential to differentiate dangerous enemies from our kin.) When we engage in social categorization we accentuate the differences between groups. We also attribute greater differentiation between the individuals in the groups to which we belong than to out-groups. We tend to homogenize the behavior of groups with which we do not identify; we underestimate differences within these groups. To read the entire article, go to: http://www.law.com/jsp/nylj/PubArticleNY.jsp?&id=1209632731835 ]