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Difference Blindness vs. Bias Awareness: Why Law Firms with the Best of Intentions Have Failed to Create Diverse Partnerships

50 Pages Posted: 7 Apr 2015 Last revised: 23 May 2015

Russell G. Pearce

Fordham University School of Law

Eli Wald

University of Denver Sturm College of Law

Swethaa Ballakrishnen

Stanford University - Department of Sociology; Harvard University - Center on the Legal Profession

Date Written: April 7, 2015

Abstract

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.

Suggested Citation

Pearce, Russell G. and Wald, Eli and Ballakrishnen, Swethaa, Difference Blindness vs. Bias Awareness: Why Law Firms with the Best of Intentions Have Failed to Create Diverse Partnerships (April 7, 2015). Fordham Law Review, Vol. 83, No. 2407, 2015; U Denver Legal Studies Research Paper No. 15-08; Fordham Law Legal Studies Research Paper No. 2591478; HLS Center on the Legal Profession Research Paper No. 2015-7. Available at SSRN: https://ssrn.com/abstract=2591478

Russell G. Pearce (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6834 (Phone)
212-636-6899 (Fax)

Eli Wald

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

HOME PAGE: http://law.du.edu/index.php/profile/eli-wald

Swethaa Ballakrishnen

Stanford University - Department of Sociology ( email )

Stanford, CA 94305
United States

Harvard University - Center on the Legal Profession ( email )

1585 Massachusetts Avenue
Wasserstein Hall, Suite 5018
Cambridge, MA 02138
United States

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