An article published March 19, 2006 in The New York Times (NYT) entitled, "Why Do So Few Women Reach the Top of Big Law Firms?" produced a barrage of comments among analysts and consultants.  Karen M. Lockwood, a senior partner in Howrey, a Washington D.C. firm, who is also the president of the D.C. Women's Bar Association, was quoted in the article as saying, "Law firms are way beyond discrimination—this is about advancement and retention.  Problems with advancement and retention are grounded in biases, not discrimination."  Almost every commentator on this article expressed confusion about differentiating between bias and discrimination. 

Ms. Lockwood correctly identifies the distinction.  Discrimination is overt, explicit and legally actionable.  Bias is implicit and often unconscious, covertly undermining the actions and opinions of some of the most overtly committed supporters of women, and usually not actionable. 

Following is an encapsulation of some of the research that confirms how deep-seated these unconscious biases are.

Scary Faces.  Neuroscientific research regarding the amygdala, the primitive part of the brain, shows that even those who are cognitively convinced that they are not biased exhibit sub-cognitive, physical signs of distress—faster heart beat, increased perspiration, elevated blood pressure—when faces of a different race are flashed on a screen even for a few hundredths of a second (faster than allows for cognitive recognition).  This is the same physiological reaction the subjects have when exposed to subconscious images of spiders, snakes and angry or frightening faces.  Therefore, regardless of others' conscious opinions, their unconscious reactions to "different," i.e. female, faces may well be undermining women lawyers.  Such disquieting physiological reactions are likely to produce unconscious avoidance or aversive behavior.

Different Sounds.  As noted in Malcolm Gladwell's new book "Blink," Rainer Kuchl, concertmaster of the Vienna Philharmonic, once spoke for many professionals in the classical music field when (circa 1997) he said he could instantly tell the difference with his eyes closed between the sound produced by a male and female musician.  This was particularly thought to be true of the sound from "male" instruments, such as tubas, trombones and French horns, which, the theory went, required the greater lung power of a man.

In spite of this general conviction that the genders "sounded differently," over the past thirty years, screens and other rules to assure anonymity have become standard in music auditioning.  During the same time, the number of women in the top US orchestras has increased fivefold.  The first time these new audition rules were in place at the Metropolitan Opera in New York, all of the four new positions were awarded to women, more than doubling the number of women in the entire orchestra at that time.

What the classical music world thought was a pure experience—listening to someone play—was demonstrated in fact to be biased by conscious and unconscious gender cues.  Jennifer L. Bluestein, a lawyer and head of professional development for Baker & McKenzie, was quoted in the above NYT article as saying, "Some of this [failure of women to rise to the top of firms] is left over from the sexual harassment cases from the 90's, but I think that it's more because of the fact that we don't look like men."  The evidence from the classical music industry seems to provide striking support for Ms. Bluestein's comment—"looking like a woman" may well undermine purportedly unbiased perceptions of our performance.

What can be done about this "below the radar" bias?  The Implicit Association Test (IAT), an assessment that measures unconscious gender and racial bias, shows that test-taker bias is dramatically reduced after exposure to minority success.  (You can test your own bias at www.projectimplicit.com.)  For example, simply by spending the day watching African-Americans excel in the Olympics, test takers scored a significantly lower bias rating against African-Americans in connection with expected career and social success.  This finding highlights the importance of diversity role models throughout society, supportive company/ firm communications and "positive self-talk" both by women and the people they work with in reshaping our unconscious biases. 
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Ronda Muir, Esq, a Senior Consultant with Robin Rolfe Resources, Inc., couples years of practicing law in the U.S. and Europe with advanced study in psychology and conflict resolution.  She can be reached at (201) 461-6630 or RMuir@robinrolferesources.com.