THE AUTHOR
Willliam A. Daniels
The Cost of Bias in the Legal Profession
Bias is a fact of human life. The ultimate cost of bias goes beyond undermining the rights of those whom our justice system is intended to serve. It also has a profound corrosive effect on practitioners and the judiciary. BY WILLIAM A. DANIELS
Bias, a Fact of Humanity.
Bias is a fact of human life. Since the law profession is largely
populated by humans, that means bias is a fact of the legal world.
This is the case despite the best wishes or intentions of any one of
us. Accept it as true.
So, as a collective of legal minds, where do our biases lie? The
answer, as we know from voir dire is that the human capacity for
prejudice and bias is pretty much infinite. Even so, there are areas
of bias against certain groups that we know are especially critical.
The most prominent include bias based on characteristics such as:
gender; race or ethnicity; national origin; religion; age; sexual
orientation and; social status (ie., poverty).
Why do we even care whether there is bias in our profession? Well,
it has to do with the very essence of our role as agents of justice. After all,
our founding fathers declared:
“We hold these Truths to be self-evident, that all Men are created equal, that
they are endowed by their Creator with certain unalienable Rights, that among
these are Life, Liberty and the Pursuit of Happiness -- That to secure these
Rights, Governments are instituted among Men, deriving their just Powers from
the Consent of the Governed, that whenever any Form of Government becomes
destructive of these Ends, it is the Right of the People to alter or to abolish
it, and to institute new Government, laying its Foundation on such Principles,
and organizing its Powers in such Form, as to them shall seem most likely to
effect their Safety and Happiness.” Declaration of Independence (July 4, 1776).
Upholding the essential dignity of the human being is a core value in our system
of government and by extension, our system of justice. Yet, the face of today’s
society differs considerably from that seen by the founders. Consider, for
example, the social evolution taking place in present day California:
The California Judicial Council has established access and fairness in the
judicial system as its number-one priority. In part, this concern has evolved
from the realization that the state’s demographic profile has changed
dramatically in the past 20 years and will continue to do so. For example,
Whites, who are now 57 percent of the state’s population, will decrease to 40.5
percent by the year 2020. The 224 different languages or dialects now spoken are
expected to increase, primarily because of immigration.
Final Report of the California Judicial Council Advisory Committee on Racial and
Ethnic Bias in the Courts (January 1997) at p. 1.
This phenomenon of demographic transition is not limited to California. It is a
national phenomenon that will dramatically impact our profession in the years to
come.
According to demographic trends compiled by the American Bar Association, by
2005, the [legal] workforce will be 73 percent white, 12 percent black, 11
percent Hispanic, 4 percent Asian and other minorities and women will make up
34.8 percent. By 2020, minorities will comprise 36 percent of all Americans. The
future population will be composed of more older whites and younger minorities,
and nontraditional families will proliferate. Chenault, Director’s Dialogue
Fostering Diversity in the Legal Profession (http://www.michbar.org/journal).
Still, even though our nation is undergoing an demographic metamorphosis of a
magnitude not seen since the massive immigration influx of the late 1800s, there
is still a significant proportion of the population who do not “buy into” the
notion that bias against those of a different race, creed, gender or such
characteristic, creates any sort of problem for either the profession or
society. This is particularly true of classes that are not subject to
discrimination or bias in their daily lives.
In a 1999 interview, Philip S. Anderson, then President of the ABA, recounted
how he was struck by how it is still difficult for many whites, particularly
white males, to recognize that there is bias in the justice system. . . .
Anderson recalled observing an open discussion among conference attendees during
which “the white men said they saw no racial or gender bias in the justice
system and [minority women] said they had all experienced it.” Although Anderson
went on to say, “I came to the conclusion that if [the minority women] saw
[bias], it’s there,” this is not the same thing as recognizing these conditions
independently of being told they exist.
The Intersection of Racial and Gender Bias at p. 542.
The perception that our legal system is biased against one class of individual
or another undermines public confidence in our justice institutions and in
general, has a negative effect on social systems intended to aid in smoothing
human interaction rather than creating discord.
Bias doesn’t always appear in an expected form. For example, one author has
concluded that there is pervasive bias against men in the Family Courts of
Canada, arguing the fathers are unable to obtain justice in child custody
matters purely because of their gender. Colman, Gender Bias in the Family Courts
of Canada: FACT OR FANTASY? (1999). The upshot of this bias, the author stated,
was the men were unable to obtain justice in matters having to do with
visitation and support in a justice forum.
Indeed, the California Judicial Council has expressed concern that bias colors
the judgment and justice of the bench in our Golden State. One pamphlet directed
at judges asks:
Have you ever:
Told an off-color joke in chambers? . . .
Remarked to a female attorney how her family commitments might
interfere with her responsibilities to the Court?
Hesitated to award a father primary child custody or given a smaller support
order if the paying spouse is the mother primarily because of their gender?
* * *
Well, consider this: According to a survey conducted in a large metropolitan
legal community, California judges have done all that and more. Apparently we
are not the enlightened, with-it bench of the 90’s we thought we were.
Lawyers who practice before us, the support personnel who work with us, and our
very own colleagues report that we sometimes adopt a degrading and demeaning
tone and attitude toward women give fathers a raw deal and are harder on male
defendants in criminal matters, afford less time for women in oral argument and
find the same argument less persuasive when made by a woman. Gender Bias
Guidelines for Judicial Officers (Cal. 1996) at pp. 1, 4.
B. The Cost of Bias.
The ultimate cost of bias goes beyond undermining the rights of those whom our
justice system is intended to serve. It also has a profound corrosive effect on
practitioners and the judiciary.
Take the experience of United States Supreme Court Justice Sandra Day O’Connor.
In 1952, after Justice O’Connor graduated third in her class from Stanford Law
School, she tried to find a law job in San Francisco. No firm would interview
her.
Ms. O’Connor finally got a job offer at the Los Angeles office of Gibson, Dunn &
Crutcher through a friend, future attorney general William French Smith. The
offer, however, was a job as a legal secretary. Ms. O’Connor turned the position
down. She eventually found employment in the public section, the traditional
stepping stone of the minority practitioner, and was hired as a deputy county
attorney in San Mateo County.
So, that was 1952, you might say. Things are different today.
That may be true for some. Yet, for others, it is not quite so, even in these
enlightened times.
In the 10-year period from 1984 to 1994, the number of minority law school
students almost doubled, increasing for 3,169 to 6,099, or from 8.6 percent to
15.5 percent, of total graduates. . . . Despite these increases, the total
number of minorities at the partnership level in major private firms nationwide
is 1,160, or 2.8 percent of the total. Nationwide statistics support the claim
that despite the growing numbers of minority law students graduating from
top-ranked law schools, the country’s largest private law firms are recruiting
minimal numbers of minority attorneys and retaining even fewer minority
attorneys at the senior associate and partner levels.
Final Report of the California Judicial Council Advisory Committee on Racial and
Ethnic Bias in the Courts (January 1997) at p. 6.
So, bias costs our profession by depriving us of our best and brightest minds
simply because they are not the “correct” gender, color or from the “proper”
background. In an egalitarian society, this is an intolerable waste of human
capital, not to mention morally indefensible.
C. Remedies for Bias in the Legal System.
Our best ally in eliminating bias in our profession are our own good
sensibilities. The literature is filled with discussions on identifying bias,
eliminating bias and developing our own sensitivities towards our treatment of
others. We should read, discuss and reflect on a constant basis.
Of course, sometimes, self-enlightenment doesn’t take. So, the law also provides
us with tools to address bias where it affects ourselves or our clients.
The primary anti-bias weapon in the federal arena is Title VII of the Civil
Rights Act of 1964. (42 U.S.C. 21 § 2000e et seq.) Title VII prohibits
employment discrimination based on race, religion, color, gender or national
origin and covers all state and local government employers, all private and
public educational institutions and all private employers of 15 or more
individuals.
Under Title VII it is illegal to discriminate in hiring and firing,
compensation, assignment, transfer or promotion, recruitment, pay and many other
terms and conditions of employment. An excellent primer and CLE-type quiz by
Gregory Alan Rutchik, Esq., regarding Title VII can be found on the internet.
(See, Rutchik, Accommodating Religion in the Workplace.)
California anti-discrimination laws overlap the federal statutes and are found
at Government Code § 12940 et seq. In the California statutory scheme, the
definition of employer is much more liberal than under Title VII.
Where bench officers act in biased fashion or practitioners exhibit bias in a
courtroom, the offending parties they may find themselves in violation of Canons
3B(5) and (6) of the California Code of Judicial Ethics, which provide:
(5) A judge shall perform judicial duties without bias or prejudice. A judge
shall not, in the performance of judicial duties, engage in speech, gestures, or
other conduct that would reasonably be perceived as (1) bias or prejudice,
including but not limited to bias or prejudice based upon race, sex, religion,
national origin, disability, age, sexual orientation, or socioeconomic status,
or (2) sexual harassment.
(6) A judge shall require lawyers in proceedings before the judge to refrain
from manifesting, by words or conduct, bias or prejudice based upon race, sex,
religion, national origin, disability, age, sexual orientation, or socioeconomic
status against parties, witnesses, counsel, or others. This Canon does not
preclude legitimate advocacy when race, sex, religion, national origin,
disability, age, sexual orientation, socioeconomic status, or other similar
factors are issues in the proceeding.
Section 1(a) of the Standards of Judicial Administration (Appendix to the
California Rules of Court Division 1) advises each judge:
§ 1. Court's duty to prohibit bias
(a) [General] To preserve the integrity and impartiality of the judicial system,
each judge should:
(1) (Ensure fairness) Ensure that courtroom proceedings are conducted
in a manner that is fair and impartial to all of the participants;
(2) (Refrain from and prohibit biased conduct) In all courtroom proceedings,
refrain from engaging in conduct and prohibit others from engaging in conduct
that exhibits bias, including but not limited to bias based on disability,
gender, race, religion, ethnicity, and sexual orientation, whether that bias is
directed toward counsel, court personnel, witnesses, parties, jurors, or any
other participants;
(3) (Ensure unbiased decisions) Ensure that all orders, rulings, and decisions
are based on the sound exercise of judicial discretion and the balancing of
competing rights and interests and are not influenced by stereotypes or biases.
C. Conclusion
So, first we must acknowledge that we all carry around our own particular
biases. It’s part of being a human being.
Then, we must recognize that, as officers of the American justice system, we are
duty-bound to ensure that our halls of justice provide equal justice to all who
are in need. That means eliminating bias at all levels of our profession; for a
biased justice system is inherently unfair.
Bias has a cost to our legal system because it undermines society’s confidence
that disputes will be resolved fairly and that we truly live in a nation of laws
not men.
We do our part by recognizing bias in ourselves and striving to eliminate it
from our profession. Let’s be vigorous in carrying out our charge.
About the Author
William A. Daniels, Esq. is a trial attorney in California.
Website: www.BillDanielsLaw.com
