Saul Derber Juno Legal
     Saul Derber, Juno Legal 


‘I think unconscious bias is one of the hardest things to get at.’

(Ruth Bader Ginsburg)


In 2018 (updated 2022) the New Zealand Law Society launched The Gender Equality Charter (Charter) to improve the retention and advancement of women in the legal profession. Charter signatories agree to six Charter Commitments, the first being to ‘Implement unconscious bias training for all lawyers and key staff and take action to address identified bias’.

What is unconscious bias?

As the Charter puts it, ‘Unconscious bias is when a person is unaware that they have certain inbuilt preferences and is unaware how these preferences influence their behaviour and decisions.’

These inbuilt preferences can arise from personal experience and our environment (nurture) and are also a necessary function of how our brain operates through ‘heuristics’.

In a nutshell, heuristics are mental shortcuts that allow people to solve problems and make judgments quickly and efficiently. Our brains use heuristics, in-built and automatic mental shortcuts, to streamline and fast-track information processing to efficiently allocate attentional resources and is a necessary evolutionary survival mechanism when a delay in information processing time could be fatal.

Broadly speaking, unconscious bias is therefore not only valuable but essential for effective and efficient cognition and successfully navigating our environment. However, it becomes problematic when it clashes with our equity goals and can also lead to poor decisions and biased judgements as a result of too fast thinking. As these biases are deeply embedded within our cognitive processes, they often escape our conscious awareness.

As the Charter puts it, the purpose of unconscious bias training is to raise awareness of these hidden influences and employ strategies to minimise the impact of unconscious bias in the workplace.

How does it affect you and your workplace?

Dr Angela Ballantyne's enlightening and, at times, alarming webinar illustrated how unconscious bias could be present when we least expect it and can permeate our professional and personal lives.

Citing a range of social science research, we gained an insight into the presence and impact unconscious bias can have on our perspective and decision-making.

Some examples

  • Interruptions of Justices on the US Supreme Court (Jacobi, Dylan 2017) showed that female Justices were more likely to be interrupted and this was more pronounced in the case of the one non-white female Justice. Gender was 30-fold more predictive of being interrupted than seniority.
  • Study showing female students' math test performance dropped when the students’ attention was drawn to their gender beforehand. The theory being that the female students performed more in line with stereotype expectations when their own attention was brought to their gender. Similarly, Asian students performed better when their attention was drawn to their ethnicity beforehand. This effect, known as Stereotype Threat, illustrates how internalised biases we take on through social norms and culture can work for or against us without any third-party influence. The bias effects here were self-inflicted and nothing to do with the examiners scoring differently.
  • 80% of white men reported that they had equal opportunities for high-quality assignments, but only 63% of white women, 59% of men of colour, and 53% of women of colour did (ABA 2019)
  • A notable increase in female musicians joining orchestras only occurred once blind auditions were introduced where the selection panel were ignorant of gender.

What can we do about it?

There is very little that we can do to eliminate unconscious bias from our thinking process and re-wire our brain but broadening our data inputs (reading from a variety of sources), and widening our experiences (spending time with people of other cultures and mind-sets) are helpful tools. Perhaps the biggest change we can make is to focus on actions to mitigate its effects.

Mitigating Bias

Dr. Ballantyne referred to Daniel Kahneman's book (Thinking Fast and Slow) which sets out two decision-making systems we employ. System 1 thinking is fast, unconscious, and automatic (e.g. driving home without thinking of our route). System 2 thinking is slow, conscious, and requires effort and attention and is employed for complex decisions.

System 2 thinking can mitigate the adverse effects of unconscious bias by slowing down our thinking and putting in checks and balances. There are a range of strategies to achieve this as set out in the Charter and including:

  • Data collection to inform understanding of what is happening in the workplace rather than making assumptions around hiring, retention, promotion and pay.
  • Define evaluation criteria before starting recruitment.
  • Blind review where possible.
  • Key performance indicators.
  • Targets and quotas/affirmative action (note this is a contentious area).

Dr Ballantyne referred to very useful and practical toolkits and checklists for hiring, promotion and performance evaluation meetings and decisions.

10 key takeaways

  1. Unconscious Bias is Ubiquitous: Recognise that unconscious bias is present in all aspects of professional life, influencing decisions and interactions in subtle yet significant ways. We don’t see the world as it is but through a lens and our brain applies heuristics to shorten processing times.
  2. Unconscious bias is problematic where it adversely impacts decision-making and equity goals: As it’s part of our evolutionary make-up, we cannot avoid or eliminate unconscious bias. However, broadening our sources of information and our experiences can soften some of its effects.
  3. We can’t side-step but can mitigate the adverse effects of unconscious bias: Rather than deny its presence or seek to rewire the brain, we need to consciously take steps and use tools to mitigate the unwanted effects of unconscious bias. The Law Society has a wealth of information, tests and free tools available. Some concrete actions include:
  • Consider unconscious bias training for all employees
  • Consider blind recruitment 
  • Have diverse recruitment and promotion panels and interviewers
  • Be vocal about diversity and inclusion
  • Don’t fall into the merit trap
  • Ensure transparent performance ratings and promotion criteria

Concluding Thoughts

Dr. Ballantyne's webinar offered an insight into unconscious bias and the research in this area and provided some guidance and tools for in-house lawyers to foster inclusive and equitable professional environments, underscoring the critical role of awareness, institutional change, and active support in overcoming the challenges posed by unconscious biases.

We want to thank Saul Derber for his thoughtful summary of this Juno Learning Online CPD session. 

Ā mātou mihi nui ki a Angela Ballantyne, Associate Professor at the University of Otago (Te Whare Wānanga o Ōtākou), for this enlightening and engaging session.

Did you miss this webinar and want to catch up? Or perhaps re-watch or share with your connections? You can watch a recording of the webinar here