Friday, November 19, 2021
Latonia Haney Keith, Visible Invisibility: Feedback Bias in the Legal Profession, 23 J. Gender Race & Just. 315 (2020).
In this article, Vice President Latonia Haney Keith, highlights “feedback bias” as a contributing factor to “the legal profession [ ] ‘losing the war on retention [with] women and minorities leav[ing] the profession because they feel unprotected and undervalued.’” Feedback bias refers to the phenomenon of “employers and educators reinforc[ing] and perpetuat[ing] bias, albeit unintentionally” when providing assessment and evaluations to employees and students. The article highlights three cognitive biases that affect feedback and evaluating performance. The three are “confirmation bias, in-group bias and availability heuristic.” For example, in the confirmation bias context:
“[G]etting noticed as a leader in the workplace is more difficult for women than for men.” This is the confirmation bias cycle at work. When people are consistently exposed to leaders that fit a particular mold, they will continue to seek out or notice only those leaders who fit that same mold. So, when evaluating the performance of a lawyer or law student, a supervisor’s or faculty’s preconceived notions will impact their evaluation. If, for example, a preconception exists that males are assertive, it will be easier for a supervisor or faculty to recall instances in which a male employee or student asserted themselves in a meeting. Conversely, a supervisor or faculty may easily forget instances in which a female employer or student similarly asserted herself by, for example, suggesting an effective strategy or navigating a tough client interaction.
The article then goes into how these types of bias can manifest in feedback provided to employees and students. “Women are for more likely to receive critical, subjective or vague feedback, and their performance is less likely to be attributed to their abilities and skills. . . . When women [do] receive more specific feedback, it [is] either tied to their caregiving abilities, attribute their accomplishments to teamwork rather than leadership or ‘overly focus on their communication style.’” How do we move forward then? Vice President Keith suggests a number of solutions, particularly in the context of law school feedback, including leveraging anonymous evaluation processes, incorporating objective measures and articulable rubrics, avoiding ambiguity, incorporating a broader group of reviewers, and increasing the frequency of evaluation among other best practices.