According to the National Association of Law Placement, only 3.55 percent of law partners in the U.S. are attorneys of color. Law firms often find that retaining is much more difficult than recruiting attorneys of color. Although statistics provide an overview of the retention problem, often a more personal take can be more illuminating and demonstrate that even an old story can be revisited to find new lessons.
The Good Black: A True Story of Race in America (New York: Dutton Press, 1999) is Paul Barrett's account of a Harvard- trained lawyer who downplayed race and overcame poverty, to be ultimately frustrated in his attempt to make partner at a major national law firm. Whether or not the book's account is accurate is less important than the potential lessons to be learned from this story regarding minority attrition, as well as certain traps for all lawyers to avoid. Some readers will see clear bias. Others will see "business-as-usual mismanagement." All readers should see a lost opportunity and, we hope, something deeper for themselves and their organizations.
To provide a thumbnail sketch of the story: We find the central character, a sixth-year attorney, as the only black senior associate in a firm's office. He joined the firm's bankruptcy practice on the promise that he would be "considered" for partnership the following year. The branch hired him enthusiastically, exclaiming "Harvard-Harvard" and "bankruptcy, bankruptcy, bankruptcy. He's perfect! And he's black."
Unfortunately, the branch's bankruptcy practice turned out to be a fragile venture. When the key client took its high quality business elsewhere, the firm responded by giving the central character relatively menial work and cutting his rate to match. More sophisticated projects were assigned to other associates.
Firm management also forgot to include him in important firm meetings. His name "never even came up" in compensation discussions. He did not receive a base-pay increase. The head of bankruptcy even told the associate that he "fell between the cracks." The associate kept working quietly in the hope that the firm would honor its commitment to "consider" him for partner.
According to his annual review, when he received a "challenging assignment," he accomplished it "with great skill." Yet the halo surrounding him faded. As the going got tough, his already downgraded work began to include non-legal tasks. He began to be coded not as "Harvard-Harvard" but, as Barrett quotes, "a racial token, someone not seen as a real lawyer."
Useful to understanding this dynamic is Glenn Loury's The Anatomy of Racial Inequality (Cambridge, MA: Harvard University Press, 2002): Loury distinguishes between discrimination, which "is about how people are treated," and racial stigma, which is "about who, at the deepest cognitive level, they are understood to be." At the deepest cognitive level, the associate was understood to be-as noted by one partner who had never met him-an African-American running around with a Harvard degree who was "solicited and tutored and polished up," but "not up to grade, for any reason." As Harvard law professor David Wilkins, in an early review of the book, pointed out, "A white 'double Harvard' who was hired with six years of sophisticated bankruptcy experience would not have had to overcome the presumption that he was not a valuable asset to the firm. To the contrary, he would be presumed competent." (Source: "On Being Good and Black," Harvard Law Review, June 1999).
Researchers call this kind of unexamined stereotyping cognitive bias. It stems not from self-conscious animus against blacks or other out-groups, but from "the content of our categories," to quote Berkeley law professor Linda Krieger. The Good Black shows, first, that cognitive bias affects inferences in contexts of low information: Thus, the partner who had never met the associate assumed that he was less than competent. Once triggered, negative stereotypes affect not only current inferences, but also memory: Studies show that subjects remember information that confirms their stereotypes better than information that contradicts them. Thus, as Barrett notes, the firm's partners "reassured each other that, on reflection, [the associate] had actually been incompetent all along, that he wasn't willing to work hard."
Another potential pattern illustrated in The Good Black is one known as "in-group favoritism." At first glance, the rules applied to the associate seemed the kind of objective, clear-cut rules often advocated as the remedy for discrimination. He was faulted, for example, because he lacked clients of his own, and because his billable hours were too low. Certainly, a firm can refuse to promote an associate to partner because he does not bill enough hours and lacks a client base. However, Marilyn Brewer's studies of in-group favoritism suggest that, at times, "Coldly objective judgment is reserved for outgroups," while ingroups are given the benefit of the doubt. In the firm's case, Barrett reports that other majority associates were promoted even though they fell short in one or another criterion for promotion.
The story also suggests that the associate was disadvantaged by another dynamic often noted in professional contexts where promotion depends not only on perceived competence, but also on perceived "fit." Barrett notes, "There was a sense on both sides of the race line that black lawyers didn't fit in" at the firm. Moreover, no partner stepped forward to mentor the associate to provide him with the "relationship capital" required to make a strong run for partner.
There are many potential reasons unrelated to race why this particular associate may have lacked mentors – he came to the firm late in his career, as a lateral associate, in a branch office, linked to a failed venture. Though he walked in the door with several strikes against him, he nonetheless seemed especially isolated.
Many black associates at firms report that "the absence of informal social contact [with white partners] denies blacks the practical advantage of relationships that boost careers," notes Barrett. As Glenn Loury explains, "Because access to development resources is mediated through race-segregated social networks, an individual's opportunities to acquire skills depend on present and past skill attainments by others in the same racial group."
Cognitive bias, in-group favoritism, and differential access to relationship capital do not fit the commonplace picture of "bad guy" actionable discrimination, with its imagery of back-room epithets and conscious animus. The usefulness of The Good Black is its ability to portray the potentially unexamined dynamics related to race. These dynamics may systematically disadvantage blacks and other out-groups in ways that are, according to Wilkins, "perfectly consistent with a general disposition to treat blacks fairly or, in the particular person's eyes, even preferentially."
What are well-meaning people and institutions to do? The Good Black holds three important general messages for the management of diversity, not only with respect to African-Americans, but also other people of color, women, gays, and other groups.
- "But I'm not a racist": unexamined bias versus conscious animus. The first message is at once challenging and reassuring. Don't assume your workplace is not creating "built- in headwinds" for minorities and other out-groups just because no one holds a conscious animus toward them. Good people, going about the minipolitics of everyday life, can create troubling dynamics none of us would consciously endorse. Diversity efforts can give us the tools to examine spontaneous and unexamined stigma that otherwise can shape inferences and memory to the unintentional disadvantage of minorities.
- "Potential versus performance." Diversity efforts should look at the treatment of majorities as well as minorities. Too often diversity efforts have focused on objective rules as the answer to diversity concerns, and have focused virtually exclusively on the treatment of minorities. The Good Black underscores the need to be on the lookout for in-group favoritism and privilege, and in particular for "leniency bias," where objective rules are applied rigorously to outgroups, while more favored groups are given the benefit of the doubt. A related dynamic, also documented by the studies on in-group favoritism, is where minority candidates are judged strictly on their performance while majorities are judged on their potential.
- "We hired him; doesn't that speak for itself?" The assumption often has been that, if a firm recruits and hires blacks or other minorities, it is immune from problematic dynamics. The Good Black suggests this is too simple a view. The book illustrates how the associate, when he was hired, was viewed through the rosy lens of "Harvard-Harvard;" but when the going got tough, the glow of "Harvard-Harvard," subsided and unexamined stigma remained.
The Good Black carries important messages for individuals as well.
- Build developmental relationships. Barrett notes that the associate didn't have senior mentors inside or outside the firm. In their book Breaking Through: The Making of Minority Executives in Corporate America (Boston: Harvard Business School Press, 1999), Harvard Business School Professors David Thomas and John Gabarro point out that career success "is the result of being able to get the career and psychosocial support that mentors, sponsors, and special peers can provide." A senior mentor of any race would have helped the associate to succeed.
- Be conscious about race, but not self-conscious. Thomas and Gabarro show that successful minority executives have an "integrated self," for example, "a successful union of racial and professional identity." Indeed, as Judith Turnock noted in the January/February 2003 issue of Diversity & the Bar,® "You cannot lash out at every perceived act of discrimination, and neither can you hold it all inside. You must find a way to deal with it." Barrett reports that the associate held his angst inside, as his prospects deteriorated. This "racial comfort strategy," notes Wilkins, "reinforced [the associate's] invisibility within the firm."
- Be realistic and flexible. A lawyer of any race would have faced an uphill battle entering a firm as a senior lateral associate in a branch office focused on one client. Under those circumstances and regardless of any promises made, it was not realistic for him to bank on making partner in two years. In fact, a friend had warned him that he could "get lost" in the branch office. When management offered to discuss opportunities elsewhere in the firm, the associate responded that he could not possibly move to another city. His unrealistic expectations coupled with his apparent inflexibility contributed to the "loselose" result, where the firm suffered damage to its reputation and the associate ultimately lost his career and his case for racial discrimination.
The Good Black offers an important case study of diversity mismanaged, especially for diversity committees seeking to raise awareness in their organizations. The story inspires and, indeed, compels us to look at ourselves and our own environments to uncover similar parallels to the dynamics in the book. It calls on us to ask whether we as individuals and institutions potentially share the same lose-lose dynamics, and to challenge ourselves to do something about it.
Duane L. Hughes is a corporate lawyer in New York City and has been actively engaged in diversity efforts throughout his career at leading law firms and corporate law departments. This article reflects Mr. Hughes' personal views and not necessarily the views of his current employer or former employers. Joan C. Williams is Professor of Law at the American University Washington College of Law, where she is Director of the Program on Gender, Work and Family. Williams is the author of Unbending Gender: Why Family and Work Conflict and What to Do About It (Oxford, 2000).
From the July/August 2003 issue of Diversity & The Bar®