Sunday, August 6, 2017

Eliminating All Bias

The Bond films are debated. Some see them as classics, others as celebrating a misogynistic attitude that is at best dismissive of women and some feel degrading and biased. More on that below.

In the deep past, 1983 to be exact, Sean Connery returned briefly to the role of James Bond in Never say Never Again. The movie is somewhat a remake of  a 1965 Bond film, Thunderball, in which the lead was also Sean Connery. Never was Connery's return to the franchise, following seven films featuring Roger Moore. It was a curious time for the series with a Connery lead interspersed by a second studio into the "Moore era" of Bond.   

Never introduced a new leader of the British security agency, whose title throughout the series is simply "M." The M character has featured prominently in various films. But the M in Never is a bit supercilious, and from some fan's perspective it was fortunate that this was actor Edward Fox's only opportunity for the part. That might be blamed on his acting or more likely the tripe Never dialogue that was written for the character.

In any event, the opening of the film centers on M concluding that James Bond has become complacent and needs to refocus on his health and physical prowess. In keeping with trends of the early 1980s, this "new age" M explains to Bond "Too many free radicals. That's your problem." What? "Yes. They're toxins that destroy the body and the brain, caused by eating too much red meat and white bread. Too many dry martinis!" M proclaims a new regimen of health for the hero. 

A recurring repartee of this film series occurs between M's secretary, consistently named Miss Moneypenny, and Bond. A most memorable exchange between them occurs as Bond exits M's office following the above-noted free radical discussion. Ms. Moneypenny asks if Bond has been given an assignment, to which he replies "Yes, Moneypenny. I'm to eliminate all free radicals." Affecting a serious facial expression, and obviously not understanding the term, Moneypenny replies ""Ooh. Do be careful." 

That exchange came to mind recently when I read in the June 15, 2017 The Florida Bar News that a new 12-point plan Aims to Eradicate Bias. Eradicate all bias? Ooh. Do be careful. There is indisputable documentation of prejudice and bias in the legal profession. But, despite that, female participation has been growing for years. And, according to the New York Times, in 2016 women were the majority of American law students for the first time. 

According to InfoPlease, Arabella Mansfield was the first woman admitted to practice law in America, in Iowa back in 1869. The first woman to graduate law school was in 1870, Ada H. Kepley, who graduated from the Union College of Law in Chicago. So women in the law is not new, and their presence is growing. The history of females in medicine is a bit deeper, with the first woman earning a medical degree, Elizabeth Blackwell, in 1849. Despite a reasonably long historical presence, there is still a lack of equality among genders in the American legal practice. 

When I attended law school decades ago, there were a great many women in my law school class. I hesitate to speculate as to number, but I perceived it as close to half. I have been taught woman law professors, worked for woman partners, been partners with women, supervised women attorneys, practiced before and worked with exceptional women judges, and interacted professionally with a variety of exceptional lawyers who were women. I would like to think that I am unbiased regarding gender. 

Having written the opening paragraphs of this post, it occurred to me that James Bond, though an iconic action figure of cinematic America, is not perhaps the best reference regarding women and bias. Female characters in Bond films have been given cliche names, and largely relegated to sexist roles and misogynistic characterizations. That has changed, however, with some very strong and capable female characters, perhaps best illustrated by the performance of Judi Dench as the head of MI-6, the same "M" character, beginning with Goldeneye in 1995, and continuing through eight films, ending in 2015.

Dench's "M" is a strong and capable leader. She is an analyst, is savvy, is worldly, and antithetical to a parade of earlier female Bond characters through the years. In the same spirit, characters like those played by Halle Berry and Michelle Yeoh, presented competent, strong and perhaps inspiring female roles. One might conclude that this iconic series of films evolved some with these characters. Some might also argue that there is room for improvement still. Perhaps there has similarly been progress for women in the practice of law, but we could all agree that likewise there remains room for much improvement?

The Florida Bar News article explains the working of a "special committee" focused on Gender Bias. After months of work, it has presented a "final report, with a dozen recommendations," focused on "a variety of gender biases, from pay inequality to lack of advancement to harassment." After investing hours in understanding the bias issue, the committee proposes 12 recommendations focused on the goal of eliminating bias. They are:

(1) A new subcommittee, the Women in the Profession Subcommittee, of the Bar’s Diversity and Inclusion Committee.

(2) CLE courses addressing gender bias topics

(3) "create and promote online “toolkits” that firms can use to identify bias problems and solutions."

(4) "review Bar rules to see if any additional rules or policies are needed and establishing a confidential means for lawyers to report instances of gender bias."

(5) "a reporting mechanism for individuals and small and large firms, with confidentiality protections for lawyers who are victims of gender bias."

(6) create a “blue ribbon” designation for law firms and other legal employers that show a commitment to diversity.

(7) develop "better information on compensation and promotion for women lawyers, family leave, and leadership positions occupied by women lawyer."

(8) "continue to recruit women for leadership positions in the Bar and encourage the same in voluntary bars."

(9) examine "law school activities that address gender bias and see what other state bars and private industries have done."

(10) "promote the advantages of maternity, paternity, and family leave."

(11) "continue the conversation with large and small firms and experts on eliminating gender bias"

(12) "search for services to add to its Member Benefits Program, such as emergency child care, that support family responsibilities of lawyers."

The report acknowledges that women have made tremendous strides in the legal profession. It notes that in 1970 about 3 percent of attorneys were women, which has since risen to about 36 percent. And, the female participation as law firm managers has increased, but median compensation for women partners has been documented in surveys as about 80% of the compensation for "male equity partners." 

Full time female attorneys overall demonstrate more progress with median earnings of about 90% of male attorneys, an improvement from about 78% in 2005. Certainly, the existence of inequity is troublesome, but the progress is also encouraging. The report notes that the Office of State Court Administrators documents that 39% of Florida judges are female, an increase from 29% only ten years ago.

Some Report statistics are not as encouraging. A notable number of women have left the legal profession. Over half of those "reported that it was due to either a toxic work culture, a job that demanded too much time, a job that was too stressful, work not being meaningful or not being able to do the type of work they want to do." That very broad litany of issues likely deserves greater attention and focus. Notably, I know of males who have left the profession citing some similar complaints. Do we know what those statistics demonstrate? 

I have known a fair few attorneys, male and female, that have departed firms over "toxic work culture." The complaint of work requiring "too much time" has likewise been heard from male and female, as has the refrain of "too stressful." And, as for the complaint of wanting more meaningful work, I have also heard that from a great variety of attorneys, male and female, young and old.

The Bar News reports that Florida Bar President Elect Michael Higer commented recently on the report and the proposals. He noted the professions has "come a long way" and noted advances in participation in practice, the bench, and the bar. He lamented, however, that "we obviously have a long way to go," and suggested that this recent report and its recommendations are the path forward towards greater gender equality. While acknowledging the gender focus of this study and report, he suggests that other bias could be eliminated, or perhaps at least ameliorated, by this new focus.

I have seen bias and prejudice in the perceptions of gender. I have had attorneys call me to complain about a judge's demeanor or hearing room behavior. Some of those calls have been about female judges. I have often asked in those conversations, how the complainer perceive such a statement or behavior as inappropriate.

I have sometimes pressed the point regarding how such behavior compares to male judges, such as "how is this different from the way judge ______ handles similar situations?" In some situations, I have been left with the distinct impression that some lawyers can perceive very similar comments or behavior as unremarkable from a male judge, but offensive or unacceptable from a female. It has surprised, when I reached that conclusion, how the complainer seemed unaware of the bias displayed in their perceptions and comments. 

Is it possible that our personal bias is not readily apparent to us? Can we remedy that by bringing bias to the fore in our own minds? Can we better detect and thereby remedy bias if we are all a bit more aware and a bit more conscious of the potential for bias?

The evidence supports that bias remains in the legal profession. To the extent we can all survive the coming revolution, and a legal profession remains after Ross and other platforms change our world, our profession needs to change. The bias needs to be eradicated, throughout. The approach currently underway is a good start, but is likely too limited in scope. I suspect that there are other bias issues that also deserve attention, such as race.

That said, Confucius is credited with the truth that "to move mountains one begins carrying away small stones." The Bar effort on gender bias is a start. Hopefully it will be a good start and we will all grow in the process of working towards the goal of eliminating all bias. I suspect that the goal of "zero" bias, though attainable, will be quite a challenge. But, without lofty goals, progress would be even more challenging. 

And, perhaps we can learn from the misogyny of Bond. Perhaps it is true that we can learn from both bad examples and good? I for one am impressed that The Florida Bar has begun the process, and I am hopeful that it both progresses and brings results. 

How can you be involved? I think a great start would be to read the final report, with a dozen recommendations. Then, decide how you feel about the recommendations, and question whether your own reactions are intellect or emotion. Then write an email to Michelle Suskauer, who is the Chair of the Special Committee or Bar President Michael Higer, and get involved with this important project. 

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