Implicit Bias and How it Affects the Practice of Law: The Cutlers Provide an Informative and Entertaining Start to the Forum

Coverage of the 2018 Forum on Diversity and Inclusion in the Legal Profession

By Chris Fortier

The Forum on Diversity in the Legal Profession started emphatically with Keith and Dana Cutler of “Couples Court with the Cutlers.” The Cutlers provided insight, intelligence, relatability, and chemistry to this “real talk” presentation. It focused on how to not step on one another’s toes and educated attendees on the difference between implicit bias and microaggressions, focusing on the grey areas to provide valuable advice. The program was based on the belief that no one wants to marginalize others, nor be marginalized.

The Cutlers took the attendees through examples of statements to see if they are implicit bias. They provided four choices (“I don’t see color.” “You are so articulate.” “You should be good at this.” “I went to the store the other day they gypped me out of my discount.”) and asked the attendees to choose the one statement that was implicit bias. The attendees thought all the statements were implicit bias but they could choose only one! While “You are so articulate” is the most obvious example because it shows the underlying expectation that they were not articulate, “I don’t see color” is another example. You are saying you do not see their life experiences. “You should be good at this” means that you are expected to be something based on your race or other external characteristic. “Gypping” comes out of word gypsy who were thought of as being thieves. Does denial of discount mean a theft? Possibly not.

The Cutlers noted that the Judicial Canons and the Code of Professional Conduct both indicate that if you provide an argument as an appeal to improper bias or prejudice, and the judge acts on it, such an act may constitute misconduct. Prohibition on expressions manifesting bias or prejudice extends to out of court behavior. Rules such as Virginia Rule of Professional Conduct 8.4(e) and ABA Model Rule 8.4(g) address these issues.

The Cutlers helped the attendees distinguish microaggressions and implicit bias using memes to illustrate the concepts that reflected life experiences. A microaggression is a statement, action, or incident that shows as an aggression. This is an outward action based on/rooted in biases and will almost always a negative impact. Derald Wing Sue, Phd., in Psychology Today, defines microaggressions as “the everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, which communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership.” The Cutlers analogized microaggressions to mosquito bites. These can happen innocently or where you do not even realize that you are doing it. However, these can annoy those who are bitten, and some populations are more susceptible to these bites (microaggression) than others. For example, you are in a law firm, you are looking to get a job done. You grab the first person you see, they get the job done. You get comfortable with that person. However, if you do not give that chance to a female or minority, or LGBT person, they do not get that chance to prove themselves. If you are in position of responsibility, make a point to reach out to diverse populations. The Cutlers encouraged attendees to make a point to invite everyone in a firm to projects, events, and even lunch.

The Cutlers explored implicit bias by noting that it can go both ways. According to the Perception Institute, “the term ‘implicit bias’ to describe when we have attitudes towards people or associate stereotypes with them without our conscious knowledge.” People of color’s implicit bias can keep them out of their zone, just like it does for white people. It can keep people from being adventuresome. Implicit bias is how we think, can have neutral or positive outcome, not a conscious decision to be biased to which you are comfortable.

They showed the example of a painting in a restaurant in another country that had panda bears with sombreros. The restaurant was previously Chinese and then became a Mexican restaurant as the owners repurposed the paintings for the new restaurant. Would the picture be racially or ethnically insensitive? The attendees had a mixed response and provided a great discussion from the different viewpoints. The attendees knew the context of the picture, and viewpoints were different across the races of the attendees.

The Cutlers then focused the discussion on what an average person can do daily. When you are blind to something, you cannot see it. It is about being a courageous collaborator on a microcosmic scale. People have to be honest and you may not always like it. They noted that “you have to make a space to share without feeling criticized or judged. They said that this can be accomplished by being gracious and direct, listening, encouraging expansion, and suggesting exploration.”

The Cutlers encouraged attendees to be “micro-resistant” by diversifying social media follows and likes, going to diversity events, and “seeing” microaggressions when they occur. When you see a microaggression, they encouraged calling it out. They also encouraged committing to personal growth and change, being open to different viewpoints, listening, getting comfortable with being uncomfortable, and listening with your heart and head. As lawyers, the Cutlers urged us to go to different ethnic events, join a diverse bar (and go to the meetings), read from a different viewpoint, go to a different worship service.

With the Cutlers’ presentation complete, the forum’s attendees were ready to dive into the deeper issues of diversity and inclusion in the legal profession.

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Chris Fortier serves on the Board of the Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article are his and his alone and do not reflect those of SSA or the Federal Government.

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