Following up on our post of November 18, 2020, from across the pond comes further questioning of the value of implicit bias training. Ministers in the UK government have scrapped the training for civil servants in England and urge that it be ended for other public employees as well.

British psychologist Patrick Forscher, who examined more than 400 studies on unconscious bias, came up with similar conclusions as those recited in our previous post, finding that few studies measured changes over time, and among “the most robust of those that did,” “changes in implicit bias don’t last.” He suggested that such training had too often been used by employers as a “catch all” which failed to tackle the specific barriers for different groups. Halima Begum, chief executive of the Runnymede Trust race equality think tank, agreed that unconscious bias training is not always effective – and recognised the dangers of a corporate “diversity industry” wanting to have “off the shelf” training.

Again, the problem is not one of failing to see bias at work, it appears, but of how to eliminate that bias in a predictably effective way. Changing minds is a much harder lift than changing behaviors, as nearly all psychologists would attest. For example, a straightforward and highly successful way to reform psychopaths, it appears, has been identified in research, in which “switching on” higher levels of empathy has been obtained through suggestive imagining. Those involved were identified as psychopaths through brain imaging because they had certain brain attributes. After the suggested therapy, they did not suddenly have brains that were “normal,” but rather they were able to display a heightened sense of other people’s feelings to at least the degree that for some period of time improved their behavior.

Bias, too, is often identified as emanating from a lack of sufficient empathy. While not an exact analogy, implicit bias training comes up against a similar challenge as has reeducating psychopaths. The problem is the how, of course–exactly how in the real world does one routinely identify those with physiologically low empathy levels, determined by whoever claims to be able to do that, and then how specifically do we “reeducate” them to the degree that they are able to carry on “normal” functioning, whatever that is as determined by whoever claims to know, for a lengthy period of time. So while there has been research nibbling around the edges of solving the very real problem of the misbehavior of psychopaths in our culture and even though there is evidence of what might well impact that problem, there is hardly a reliable method with which to move forward.

Much about thinking has a physiological aspect to it involving a complex balance between the rational prefrontal cortex and the emotional amygdala. What levels of stimulus trigger aspects of each, how much flexibility there is in their operations (which can result in “black/white” thinking, for example), which counteractions of one against the other do or don’t exist–these are often pre-wired and highly individual conditions that “training” will have little impact on physiologically. The best that we can realistically hope for is that there will be a learned response to certain circumstances that a biased person can call upon to change specific behaviors for a period of time. The same hope that we might have for psychopaths. The problem still being identifying who needs and therefore might benefit from such “training,” what that consists of and how to make its impact last.

An important finding in the research regarding raising empathy in psychopaths was that, more than the control subjects, they had to consciously, deliberately activate the mechanisms that would tend to boost their empathy. The problem, the researchers found, was regardless of that ability, psychopaths display low motivation for changing their behavior and are thus less likely to activate those mechanisms, which “represents an unfortunate challenge.” They can, they really just don’t want to be more empathic.

Shall we undertake a company-wide or country-wide brain scan to determine those who are not using their fully empathy capacity? Who decides what amounts to empathy that is sufficient and the level which needs to be reeducated? What reeducation program is used and even if one is decided on, how can that program be made to produce changes that are likely to last? Does there need to be a required “re-inoculation” periodically? What if, as the research into implicit bias training seems to imply, some people just don’t want to be less biased, regardless of how well trained they are?

Apart from screening new recruits for diversity of thought, as we advocated in our last post on implicit bias, what seems like the much more effective, least invasive method to changing biased decisions at work by those currently working there is to simply have a hard set of behaviors that are condoned and those that are endorsed. Those workers who train themselves to abide by those rules are the keepers, regardless of their personal bias, unconscious or otherwise. Those who don’t are asked to leave. Of course, in this ongoing cycle of questions, who comes up with those rules becomes important. Perhaps that is where the potential for brain imaging, reeducation, etc. should come into play.

Whatever you think of the recent elections, it’s fairly clear that the nation was strongly divided on its preferred Presidential candidate. So it’s not surprising that in closely fought states there are legal challenges to the tally. What is surprising is that there has been a wave of bullying to get the lawyers involved in those challenges to drop their representation.

In order to claim that we are a fair society, we have to react to the prior paragraph with the same scrutiny regardless of which political party is the challenged or the challenger. Lawyers bear the burden of acting on behalf of clients to the best of their ability, regardless of their personal opinions, and sometimes the courage to do so runs against substantial public opinion.  And even their own convictions. Any defense lawyer who has represented a person accused of what the public considers a heinous crime–child sexual abuses, brutal murders, financial crimes against the elderly–knows the weight of that undertaking. A similar level of courage and commitment was illustrated in David Boies’ representation of Al  Gore in the Florida challenge he made in 2000–a challenge that roughly half of the country was against.

Some wondered whether the principle of representation for all started to erode, however, when a major law firm chose to withdraw from representing a controversial position simply because of the backlash that started to build. In 2011, King & Spalding withdrew from its representation of the U.S. House of Representatives as it sought to uphold the Defense of Marriage Act (DOMA) outlawing same-sex marriages. The chairman of the firm, which has long been an advocate of gay rights, determined that “the process used for vetting this engagement was inadequate,” implying that the intake process should have included the consideration of the firm’s political opinions and/or any potential public backlash. It should be noted that the firm had also over the years determined it could defend terrorist suspects imprisoned at Guantanamo and the NRA in a number of matters regarding the right to bear arms, despite the onslaught of public opinion opposed to those representations. The partner in charge of the DOMA case, a former U.S. solicitor general, resigned from the firm “out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do.”

News outlets including The New York Times and The Washington Post condemned the withdrawal in response to outside bullying.

And now we have several law firms who were engaged to challenge the Pennsylvania election results withdrawing after “extreme pressure”–“an advertising and public-shaming campaign” that allegedly included not only threats by and to clients, but also  threats of bodily harm and death against the individual lawyers and their families.

There are several reasons why a lawyer might legitimately ask to be removed from a lawsuit. His/her own personal opinion of the advisability of the position or even an assessment of the strength of the case is usually not one. Far beyond justification for withdrawal is the assessment of the “public” (pre-trial) that the case is not a defensible one or that a win would go against public opinion. It is the job of the courts to decide what is a legitimate claim and whether or not it succeeds. Which they can’t do if the challengers can’t engage counsel. Once decided by the courts, it is up to the legislature whether to change the law that produced a result a portion of the public doesn’t like.

As one pundit asked:  “What is the end game here? When groups pressure a firm into dropping representation for an unpopular client, is the ultimate goal to have only bad lawyers defend an unpopular law, or no lawyers at all? And what kind of legal victory would either of those ends represent?”

The country is divided. Families are divided. Legal positions and court findings could go either way in any given case. These particular lawsuits may well turn out to be losers. What a constitutionally based society can’t do is deny counsel, most particularly through bullying and threats, to those whose rights are eligible to be determined by the courts. And suggesting that a primary consideration in the intake process should be “cultural fit with the firm,” whatever that means, degrades the calling of the legal profession. Forced “group think” becomes a real concern if divergent viewpoints in our society can’t get a full-throttled hearing. Those who are rightfully concerned about promoting diversity should be wary of any person or organization that pressures legal counsel to drop the representation of a client simply because others, even loud and well-organized others–including those inside the firm, don’t support that client’s views.

This is the time when a firm’s values become transparent, to use that overused word. Rather than have opposing attitudes creep up on you and divide your workforce, force the issue of  values in the first instance. Firms must consciously, affirmatively choose those that matter above everything else and make clear to everyone their primacy — where necessary, by letting anyone who doesn’t share those values walk out the door. We’re not talking about political stances. The firm value in question is the attitude that they bring to taking on controversial issues. As another pundit said, “No good culture ever developed laissez-faire.” And a house divided…

Diversity is well-established as a way to improve organizational performance. Most legal organizations say, rightly, that they value diversity and are attempting to improve their numbers, but how to do that often remains an open question. The statistics of gender and racial diversity at all seniority levels are dismally stuck in low digits. Should we change our hiring criteria? Reconsider our evaluation and promotion standards? Add additional training for those most at risk for not succeeding? Or add training throughout the organization to eliminate the biases that may impede diversity success? That last approach has been a popular step.

While there are many arguments (that won’t be recited here) as to how and why diversity training programs are not moving the needle, a recent article by Dr. Art Markman, a professor of Psychology and Marketing at the University of Texas and the Founding Director of the Program in the Human Dimensions of Organizations, has made some strong claims as to why implicit bias training, currently in vogue, is “rarely effective.”

Professor Markman points out that the concept of implicit bias allows people to believe they are not biased except, perhaps, in some unconscious instances that are not intentional. It avoids a head-on examination of one’s prejudices, which is often highly resisted. Yet, Bertram Gawronski‘s review of studies using the Implicit Association Test, the standard assessment for implicit bias, suggests that most people are in fact aware of their biases. And a comprehensive analysis of techniques used for reducing the influence of implicit associations found that, while some strategies may initially improve people’s performance on the Implicit Association Test, those effects are short-lived, with little change in performance in the long run.

What Markham suggests is that organizations explicitly hire a diverse base of employees, provide mentoring for future leaders, and seek out opportunities to enable more women and people of color to take on key roles. He acknowledges that sticky wicket that many firms and departments have run into. These changes in hiring, mentoring and promotion policies may be quite unpopular among those with whom the diverse candidates are competing. Markham apparently recommends making these diversity goals something that all employees embrace, a good objective, to be sure, but again not one easily accomplished.

The other way to approach this is to articulate the value of diversity in thought and skills, rather than judging diversity candidates by the same group-think standards that have brought the white middle-class professionals to a majority or, alternatively,  by the simple fact of their race or gender, which may or may not achieve true attitude diversity. This is a goal which can be embraced by everyone because it provides opportunity for all races, genders and orientations.  And research shows that using these kinds of skills as a guide for hiring, mentoring and promoting does in fact on its own merits result in more racial, economic and gender diversity. Diversity in those skills is also truly valuable to the organization. Hiring for emotional intelligence, for example, or for atypical thinking processes, as indicated by assessments like MBTI and a number of others, can bring more diversity and more productivity to our workforces than we’ve had for generations.

At a time when many of us are flagging in terms of coping with stress and maintaining productivity, a study reported by SixSeconds, an emotional intelligence advocacy organization, may give some insight into a path forward.  After first year medical residents were provided with a 30-minute introduction to emotional intelligence and three 45-minute workshops on using emotional intelligence to cope with stress, they showed a marked improvement in their risk for burnout, a long-standing scourge of the medical profession.

Burnout is a risk for many workers, and certainly for lawyers, particularly at this time of such extraordinary stress. The consequence of lawyers’ low resilience and burnout is not only stagnant or upended careers, but also a high risk of suicide attempts and suicide, as the 2016 ABA Hazelden Report confirmed.

Every organization owes it to its workers and its bottom line to look for indications of high stress, which is likely to be extensive these days, and to establish a program for equipping stressed personnel with the skills to avoid burnout.

 

On Monday, October 19, 2020, at 3:30 pm EST, Muir will be presenting a webinar on “Emotional Intelligence in the Workplace” for the HudsonMann Virtual Compliance Conference taking place Monday and Tuesday, October 19-20.  HudsonMann supports over 500 organizations nationwide at more than 3,000 client sites with a focus on ensuring compliance with Affirmative Action Programs. Join us in this important discussion! Register here.

The Center for Creative Leadership (CCL) recently identified empathy, a component of emotional intelligence, as critical to the most effective leadership, particularly during this very stressful time when leaders must depend so much on others to help their organizations survive and prosper. Engaged employees are more productive and positively impact organizational profitability, but the researchers who published Closing the Engagement Gap, found only one-fifth of the global workforce fully engaged. And those disengaged employees can become a liability.

CCL researchers have established that a leader’s empathy in the workplace is positively correlated with the job performance of his/her employees . And managers who show more empathy toward direct reports are viewed as better performers in their job by their bosses. Empathy is a core component of emotional intelligence — signaling the ability to put oneself “in the shoes” of someone else.

These findings correlate with the Harvard Business Review’s recent article on the importance of managers adding emotional intelligence skills to their analytical skills. What that means as a practical matter is noticing and attending compassionately to the needs, fears, and concerns of those whom leaders are trying to lead. Those skills are usually different from the skills used to solve pressing business and financial problems. Because these different skill sets come from engaging different parts of our brain — parts that usually can’t both be operational at the same time, it is imperative to learn how to toggle between those two mindsets as appropriate so that we don’t get stuck in either.

For many leaders — particularly those with well-established financial and analytic abilities, the best advice is to take opportunities to exercise that other portion of the brain that can also improve your organization’s engagement, productivity and profits. Establish a caring personal connection with those you are responsible for leading and learn the cues that tell you who needs more support and what it is they need. This is not a matter of being a “soft” leader, but of being a leader who values and learns from the full range of experience that your employees are having.

 

Muir has been interviewed on “Elevating Happiness and Increasing Success with Emotional Intelligence” and her book Beyond Smart: Lawyering with Emotional Intelligence for the Florida Bar Association’s podcast that will be available here and here starting Monday, September 28, 2020. Use Discount Code EIWEB25 for a 25% discount on Beyond Smart!

 

 

The New York City Bar Association panel on Using Emotional Intelligence as a Tool to Improve Lawyers’ Well-Being and Performance featuring Ronda Muir, Natalie Loeb and David Sarnoff  is currently rescheduled as a live webcast on Wednesday, July 29th from 12:30 till 2pm.

The focus of the panel will be on understanding what emotional intelligence means for lawyers and how to use it to improve your communication, client service and leadership skills and to help create a high performance, high functioning workplace. Steps for building specific skills will be reviewed and ways to cope with the stress and anxiety of isolation that we have all experienced will also be explored. Tri-state CLE credit is offered. The program is free for NYC Bar members. Muir’s book Beyond Smart: Lawyering with Emotional Intelligence will be available July 27th through August 8th at a 25% discount with free shipping by using the CODE: ANNUAL20 when ordering on the ABA site.

For more information and to register for the panel, please click here.

We look forward to talking with you about this important topic!