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83 Fordham L. Rev. 2407 (2014-2015)
Difference Blindness vs. Bias Awareness: Why Law Firms with the Best of Intentions Have Failed to Create Diverse Partnerships

handle is hein.journals/flr83 and id is 2459 raw text is: DIFFERENCE BLINDNESS VS. BIAS AWARENESS: WHY LAW FIRMS WITH THE BEST OF INTENTIONS HAVE FAILED TO CREATE DIVERSE PARTNERSHIPS Russell G. Pearce,* Eli Wald** & Swethaa S. Ballakrishnen*** This Article uses the example of BigLaw firms to explore the challenges that many elite organizations face in providing equal opportunity to their workers. Despite good intentions and the investment of significant resources, large law firms have been consistently unable to deliver diverse partnership structures-especially in more senior positions of power. Building on implicit and institutional bias scholarship and on successful approaches described in the organizational behavior literature, we argue that a significant barrier to systemic diversity at the law firm partnership level has been, paradoxically, the insistence on difference blindness standards that seek to evaluate each person on their individual merit. While powerful in dismantling intentional discrimination, these standards rely on an assumption that lawyers are, and have the power to act as, atomistic individuals-a dangerous assumption that has been disproven consistently by the literature establishing the continuing and powerful influence of implicit and institutional bias. Accordingly, difference blindness, which holds all lawyers accountable to seemingly neutral standards, disproportionately disadvantages diverse populations and normalizes the dominance of certain actors-here, white men-by creating the illusion that success or failure depends upon individual rather than structural constraints. In contrast, we argue that a bias awareness approach that encourages identity awareness and a relational framework is a more promising way to promote equality, equity, and inclusion. * Edward & Marilyn Bellet Chair in Legal Ethics, Morality, and Religion, Fordham University School of Law. We appreciate valuable comments from Clare Huntington, Sonia Katyal, and Robin Lenhardt, as well as those from the participants at The Challenge of Equity and Inclusion in the Legal Profession: An International and Comparative Perspective Colloquium held at the Fordham University School of Law. For an overview of the colloquium, see Deborah L. Rhode, Foreword: Diversity in the Legal Profession: A Comparative Perspective, 83 FORDHAM L. REV. 2241 (2015). Many thanks for their extraordinary assistance to research assistants Rachard Kemp and Natasha Dasani, and to Fordham Law School library researcher Larry Abraham and his gifted colleagues. ** Charles W. Delaney Jr. Professor of Law, University of Denver Sturm College of Law. * Ph.D. Candidate, Diversifying Academia by Recruiting Excellence (DARE) Fellow, Department of Sociology, Stanford University. Affiliate Research Fellow, Center on the Legal Profession, Harvard Law School. 2407

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