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Adjust for Unconscious Bias

In this Expert Series episode, Elevate’s President, John Croft, talks with the Global Head of Diversity and Inclusion at Hogan Lovells, Bendita Cynthia Malakia.

Walk the Talk on Diversity and Inclusion

In this Expert Series episode, Elevate’s President, John Croft, talks with the Global Head of Diversity and Inclusion at Hogan Lovells, Bendita Cynthia Malakia.

This is a real conversation on deliberate equitability, diversity, and inclusion. Bendita and John touch on the need for change specifically on unconscious bias. They talk about recognizing our legal colleagues who are underrepresented, the key issues facing the legal industry, and the impact of diversity initiatives on business.

Episode highlights include:

  • [01:11] – Why is deliberate equitability and inclusion important to Benedita and to Hogan Lovells
  • [04:53] – Individual partners drive Diversity and Inclusion success
  • [07:07] – Using a business case to advance the underrepresented…
  • [09:49] – There is no magic in diversity… adjust for unconscious bias
  • [11:46] – Generational diversity … creating a workplace that honors the workers’ style of working…
  • [14:40] – A generation ago older people could opt out of the conversation…now they need to engage…there is an expectation that a statement is made supporting digital from the inside
  • [18:39] – We can’t always think of ourselves as the smartest people I the room… the stakes are high
  • [22:08] – It takes resources to execute effectively
  • [23:13] – More progress has been made in the last six months than the prior…


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Podcast Transcript

Note: This transcript has been adjusted to improve readability. Transcripts are generated using speech recognition software and human transcribers. The context and more than 95% of the actual transcript have been preserved.  We strongly encourage our listeners to listen to the audio.


Nicole Giantonio: Hello, this is Nicole Giantonio, the Head of Global Marketing at Elevate. The podcast episode you’re about to hear is part of our expert series featuring Elevate’s President, John Croft, hosting the second of several conversations on his expert topic, Deliberate Equitability and Inclusion. John’s guest for this episode is the Global Head of Diversity and Inclusion at Hogan Lovells, Bendita Cynthia Malakia. John and Bendita discuss the unique opportunity to forward the moral case and the business case for diversity, what it takes to support and ensure under-represented individuals have the opportunity to be successful, and that deliberate equitability is understanding that there are limitations to what we see and know and to be aware of how we behave.

John Croft: Bendita, thank you so much for taking the time to chat with me today. Our topic is deliberate equitability and inclusion, which as I mentioned to you, is something that we build as a core part of our business here. Why is equitability and inclusion important to you personally, and important to Hogan Lovells?

Bendita Cynthia Malakia: Well thank you, John, first and foremost, for having me join you for this really important discussion. Equitability and inclusion are both incredibly important to me personally – I identify with multiple marginalized identities. I identify as being a black bisexual woman. As a result, I walk through the world thinking about how my experience is impacted by those identities and by the ways the organizations respond to them. Additionally, in my role at Hogan Lovells.  Like most major organizations and especially large law firms today, for those who identify as being under-represented, it feels like we are currently in a one-issue society where we are either voting for equity or we’re voting for inequity or maintenance of the status quo.

All of these issues are incredibly important. We all know and have been part of the conversations that indicate that diversity, equity, and inclusion are the right thing to do, in addition, our clients demand it, and it’s the wave of the world, it’s our present, it’s our future, and it makes sense that we are taking deliberate and intentional action towards ensuring that everyone is included. To ensure we truly are getting the best results for ourselves and for our clients, and for elevating the moral standard by which we operate.

JC: That’s great. What have you seen by way of an effective equitability and inclusion program? Or what does an effective equitability and inclusion program look like?

BM: I love this question, and that’s a question that is talked about all the time by all sorts of people, under-represented people, organizations that are being measured and are trying to do the right thing, by our clients. No one has gotten diversity, equity and inclusion right. I don’t know of any organization that is knocking it out of the park in alignment with where diversity ought to be. But there are standards and effective components of a diversity, equity and inclusion program that help to move things forward in the right direction. First and foremost, we want a tone set from the top, and not just a tone, we don’t just want mouthpieces, we want people to walk the talk. We want our senior leaders to recognize their own biases, to recognize their own roles, and either advance equity or not advance equity. We want them to model appropriate behavior, we want them to participate in the training and the solutions.

Making sure that our leadership is demonstrating DEI and living it and embodying it is really important. We’re really lucky at Hogan Lovells to have a Latino CEO, Miguel Zaldivar, and a very diverse leadership team, 60% of our industry sector group leaders are under-represented, 56% of our executive committee is under-represented, 15% of our board is under-represented, and so we’re lucky to be in a place where we are trying to live out those values from senior leadership. Accountability all the way down the line is really important. Our senior leaders understand what’s at stake because they see the decisions that are being made and the reputational benefit or harm from these efforts. Figuring out how you get accountability down to what law firms hate to call it – middle management – our individual partners. Individual partners control so much of what makes DEI successful.

When we look at DEI, what we really care about are not the images used in a brochure, although those can help or harm, what we’re really looking at is, how are we attracting, developing, and advancing our under-represented lawyers.  In some ways, it’s a narrow conception, but it’s a huge remit. What are those partners doing? Are they giving equitable work? Do they understand who all of their people are and what their skill sets are? Are they providing equitable client access? Are they giving opportunities to shine? Are we doling out mentorship and sponsorship in ways that are fair? All of these things tend to be held at the individual partner level. Building in accountability can be challenging in a partnership model but is incredibly necessary to make DEI work. There are so many things. In an. independent diversity and inclusion function, measuring metrics is so important. You have seen that Hogan Lovells released external diversity goals for minority and LGBT+ lawyers in mid-October 2020. We’ve had gender goals published for quite some time – for almost eight years now.

We’re proud that we’ve taken that important next step to be more inclusive by telling the world what our aspirations are with respect to other significant diverse populations. That will increase our accountability, and tone from the top, making sure that we’ve looked at our processes, our policies, our programs, our systems, to make sure that we are looking at everything through an equity and inclusion lens. These are really the baseline ingredients but every single decision matters. When I was announcing the partner goals in October, something I said that resonated with people is there are no neutral actions. Every decision you make, whether it’s who you choose to spend time with, who you choose to give an opportunity to write an article or participate in a call with a client and with you, or to assign to a matter, or whatever it is you’re choosing to do, is either taking us a step towards achieving those goals, or it’s taking us a step away from achieving those goals.

JC: Everything you said resonates very well with me, and with us, and obviously it’s the right thing to do, but we’re also all in business. Have you seen examples of a good equitability and inclusion program delivering business impact to the firm or to your clients?

Have you seen examples of a good equitability and inclusion program delivering business impact to the firm or to your clients?

john croft

BM: We certainly have strong examples of times when diversity has made the difference. We recently had a large client where our diversity and inclusion response wasn’t necessarily in alignment with their goals, and we were at risk for the work, and we turned it around was a considerable effort and demonstrating that we were willing to set achievable targets for them. We’ve now gotten a significant number of matters within a short period of time from them. That, in essence, is the business case. If we care about the work that we’re able to get on the basis of diversity and inclusion, that’s exactly what we’re talking about. For me, as a DEI professional, \ we care about the moral cases you noted, we care about the business case, but we are in a period of time which is really special right now, and I think the killing of George Floyd really sparked this, not only in the US but around the world. This is the first time where the moral case for diversity and the business case for diversity has converged, and as a result of that convergence, we have a lot of wonderful opportunities to be able to use that business case, the clamoring by our clients for more DEI, to be able to effectively advance our people.

I don’t want our people or our organization feeling like diversity is for those people out there that we have no control over. It really is about the people who are in our midst. And when we hire people, all of the people we hire are more than qualified to be here. We’re not talking about people that aren’t qualified. So if there are people who aren’t being developed and advanced, we really need to look at ourselves to figure out, how have we failed these individuals? What we can do with clients is finding meaningful ways to tie these goals together. We can have reciprocal mentoring programs with our clients that allow additional insights from people both inside the firm and outside the firm to allow for additional development. We can have partnerships with our clients on feedback programs where clients are designated and agree to provide specific developmental, meaningful feedback for our under-represented lawyers and who can identify opportunities for them in the context of the representation to shine.

When our clients ask us to be more diverse and to designate more diverse people to our matters, we are always more than happy to oblige, and we ask that they give us those opportunities to be able to do so. This is a partnership. We are backing away from just performative diversity and inclusion, and we’re really getting into the meat of what does it take to make people successful. There’s no magic in diversity. There’s no magic whatsoever. Everyone always asks, “What’s the thing? How are we going to get there?” There is no magic.

What we’re trying to do is adjust for what is mostly unconscious bias. Very few times do we actually see explicit bias, sometimes we do, and we handle those incidents efficiently. What we’re really talking about is all of the bias that you can’t see, how do we structure around that? That’s really what deliberate equity is about, understanding that there are limitations to what we know and what we see and what we understand about how we behave.

What we do know is that the results that we have as a legal profession are in alignment with the aspirations that we say we want, and it’s not in alignment with who we say we are, as a result, we need to take intentional action to fix it.  It means if we naturally do bias, even affinity bias – we tend to give work to people that look like us, or our succession planning isn’t intentional, and we tend to hand over matters and relationships to other people that look like us, how can we have a system that’s structured in place to make the unconscious conscious where we are able to be more equitable and handing out those opportunities to people that might not look like us? That’s really what the opportunity is, but there is no magic.

We recently had a large client where our diversity and inclusion response wasn’t necessarily in alignment with their goals, and we were at risk for the work, and we turned it around was a considerable effort and demonstrating that we were willing to set achievable targets.

Bendita Cynthia Malakia

JC: You make a very good point, and it leads me to something that we talk about, which we describe as the workplace of the future.  What we mean by that is partly to be equitable and inclusive, and therefore we have diversity. One of the things that we have seen is a change in the workplace, and we see the workplace of the future possibly doesn’t mean we all go to an office, which leads to your point about handing the next piece of work to somebody that looks like you. What have you seen by way of a workplace of future programs in your world?

BM: When we start talking about the future, what we are really talking about is the world where millennials are starting to age and are really in control of the workforce. We’re currently in a situation where boomers are holding on to the last vestiges of power, and where millennials are occupying a significant part of the workforce, and Gen Z is starting to occupy an increasing voice. We’re talking about what happens when millennials take over, and when Gen Z becomes the predominant sector of the workforce. We really need to start talking about generational diversity. We can build in the components to make the workplace of the future a reality today just by listening to what the desires of those generations are. Both of those generations get a lot of flak for things that they ask for. There’s this perception that all they want are ping-pong tables, a circus, and a taco truck to engage with at lunchtime.

It’s a little bit deeper than that. What I found when talking to millennials and Gen Z-ers, they really want the same things that everyone has always wanted but that prior generations haven’t had the flexibility to ask for. The ability to have your own life, the ability for a workplace that can increase its demands over you because we live in societies, at least many of us, where the money is incredibly important and we’re not receiving a paycheck can be a devastating outcome for our families where workplaces have a disproportionate impact on our overall lives.

It’s not to say that this is the first time that it’s happened, but this is really the first time that we have generations that are saying, “Okay, if I’m going to give you my life, I expect you to honor other parts of my life. I want there to be more integration rather than separation. I don’t wanna talk about balance, I want to talk about all of this is fitting together. I want to be able to manage time effectively. If you think that I can work at 2:00 AM when naturally most people would be sleeping except for our night owls, then I expect you to honor the fact that I might wanna go to the gym at 11:00 AM,” and that the worker and the employer ought to have some amount of equal footing. Understanding that as we become a more integrated society, we are going to need a new language to deal with common and disparate challenges.

When we start talking about race and ethnicity, for instance, oftentimes in global organizations today, we’re talking about the challenges of the US and the UK, we need to start figuring out, “What does this mean in the Asia Pacific? What does this mean in the Middle East? What does this mean in Mexico? How are we going to integrate these understandings so that we can more effectively advocate for diversity, equity and inclusion, not in such a provincial way, but in a more integrated and cohesive way?” We need to get to the place where the stakes related to DEI aren’t high, where it’s expected that everyone’s going to engage. A generation ago, perhaps even, seven months ago, we were in a situation where it wasn’t necessarily anticipated that those of the older generation must talk about diversity, equity or inclusion, that wasn’t necessarily a workforce of present activity.

They could opt out because they came of age at a time where the best thing you could do, the most honorable thing you could do was to not talk about it, was to not see the differences, and they’ve excelled. Now our world has changed where DEI has become a benefit and people need to have those conversations, and they need to have fluency on race, on social mobility, on disability, on political issues. It’s important that we understand that we start preparing ourselves for a world where if, in the US, corporations or people in the political process; that we anticipate organizations, corporations, law firms, professional services firms, are expected to have political positions.

That’s really where we are now, and we’re in a place now where it may be okay still to opt-out of making statements on social issues.  We are only a year or two away, maybe a little bit longer, but I’m hopeful it’s only a year or two away before every single organization, especially large ones, are going to be expected to assert political positions and to view meaning in everything they do. This is going to cause a lot of fissures, it’s going to cause a lot of problems, it’s going to cause some potential conflicts with clients or new understandings with clients who also probably have their own positions on specific issues.

I think we’re in a real reckoning when we’re talking about the future that spans both generational diversity and other more traditional aspects of DEI. We need to start getting ahead of the curve and having those conversations now.  We need active conversation, what do we choose to speak about as an organization, even internally, and what don’t we choose to speak about? There are conflicts that are happening all over the world. There are people suffering all over the world. I don’t mean to sound like the whole world is suffering, it’s not, but there are a lot of things that happen that are worthy of statements. How much time should we be spending as an organization, understanding that all of those issues are of paramount importance?  Of course, to the people, they are happening to they are of the utmost importance.   How do we decide as an organization where we stand, what positions are the right positions, and how do we honor the identities of those individuals, the societies that we are in and make sure we are still operating workplaces and work environments rather than social justice organizations.

I don’t have any answers, but these are all questions we are wrestling with now, that we’ll be required to have answers for in the not too distant future.

JC: You made some really good points about workplaces of the future and some good that’s come of it. Have there been workplaces of the future that have surprised you?

BM: Not really. The thing that surprises me the most is how much reticence there is to change, and how much, especially with respect to the legal industry, how little we are moving. We are honored as a firm to work with Elevate and to advance the way that we provide legal services and to be more innovative as a firm, we do well on the innovation front. There are organizations in other industries that have been doing things for 20 years that we’re just trying now.  At some point in time, we need to figure out how to move away from the carpenter, steel maker mentality.  Historically that’s what we’ve had.  The artisan mentality, we have lawyers who train apprentices, and we are in this profession, and it’s a laudable profession, it’s an honorable profession. I would rather not be a part of any other profession, but we need to start recognizing that other industries and other organizations are ahead and that we have something to learn from them. We can’t always pretend to be the smartest people in the room, and figuring out how to be better, faster adopters, which is in part what I believe Elevate is all about, and how can we do all of these things better.

That’s really what we ought to be doing in the legal profession, and we’re not. What surprises me is that the reticence to move forward, understanding that we all see the drastic, fast-paced change that’s happened across our world. 10 years ago, we wouldn’t be talking about LGBT rights at work in the same way that we talk about it now. Transitioning policies didn’t really exist. 10 years later, we’re in a completely different place. The reticence towards understanding that change is happening, change is rapid, change is going to get there, and do we want to be ahead of the curve, or at the very least, ready for it or do we want to constantly be catching up as a profession? And I don’t think that’s actually an ethical thing for us to sit back and take such a measured approach going forward, because the work of lawyers is so incredibly important. We impact governments, we impact people’s individual lives and their liberty, we impact whether or not organizations and their clients can thrive. So I think we have a duty to get on board more quickly.

JC: To your point about Elevate, yes, we chose the name Elevate literally for that very reason about improving the way everything is done. Why would an organization not sign up for equitability and inclusion or the Workplace of the Future program? Everything you’ve said makes perfect sense, and yet, particularly in the legal sector, there are some that don’t. Why do you think that is?

BM: I think one easy answer is that the stakes are high. The stakes are really, really, really high. We’ve seen this with Me Too, we’ve seen this over the last six months with a couple of executive transitions on the basis of some of their race and ethnicity work at some organizations. Getting this wrong can come with a lot of social stigmas. And it’s not necessarily always easy to get it right. For me, being an under-represented person in particular, with respect to my black identity or my queer identity, I talk about these issues all the time, so it doesn’t really matter that I do DEI for a living. If anyone went through my phone, all I do is talk about black things all day long. It is just my life, it’s how I communicate, it’s how I talk to my friends, white, black or otherwise. It’s just a concrete part of my existence.

I don’t need to worry necessarily about how I communicate around these issues because I’m very comfortable with them because I’ve exercised that muscle over and over and over again every single day of my life. Conversely, those who haven’t, whether it’s because they have the privilege not to have to interact with that part of their identity or because it might be frowned upon in the circles that they’re in, or even more insidiously, because of some desire to maintain privilege solidarity or white solidarity, as some people might say, it’s hard if you make a mistake, we live in a cancel culture world where if you get it wrong once, people will copy every single tweet that you ever wrote that might not necessarily be favorable, they’ll post it, they’ll contact your workplace, people are recording it, and all of a sudden you have a scarlet A on your forehead. As a result, I think some people, if you don’t know what to do and you think you’re going to be criticized for taking half measures, or criticized for not doing the writing or saying the right thing, it might be easier to just come up with a pretext for why you can’t do it right now.

Additionally, it takes resources, and those resources aren’t necessarily clear. It’s not necessarily clear how many resources you might need to actually execute something effectively. Lastly, to a point that I raised earlier, given that no one has completely gotten this right, and there’s nobody who’s completely knocking this out the park, who’s hiring balance is completely correct, whose retention advancement is completely correct, or every single under-represented person is delighted to be here.  They’re on par with majority populations, having equitable experiences. There’s no easy formula. As a result, especially sometimes for smaller organizations or mid-sized organizations, the resources that you would need to deploy outweigh what they assume the benefit to be. If clients aren’t talking about it, and if we can’t really align the incentives, and you don’t have that leadership from the top, then it’s not going to happen in a way that’s meaningful.

JC: The very fact that you do the job that you do in the firm that you do means you are fortunate. Have you noticed people jumping on board with programs like this quickly – moving as fast as you would like or have hoped they might, or is it still taking time for many to get onboard?

BM: I’ve seen more progress in the last six months than I’ve seen in a decade within organizations. We’ve seen diversity programs come out of nowhere, we’ve seen CDOs being established in institutions. All of that is wonderful. The real question is, are we performing diversity, or are we implementing and executing a strategic diversity plan that has funding to it, commensurate to what we expect people to achieve that has actual metrics that we are building towards, and which we’re provided a team that has what it needs to actually move forward on it? I tend to be a positive, hopeful person. I am lucky that most of what I ask for as a DEI professional at Hogan Lovells, we have complete leadership support which isn’t always the case in talking to other diversity directors and CDOs. We are very fortunate here at Hogan Lovells to have a global team of 11 individuals that execute diversity and inclusion as their full-time job. I think it’s a testament to the firm that we’re willing to put that amount of resource toward it, and these individuals are highly committed.

I do wish that we can get beyond the black boxes on LinkedIn and we can get beyond the statements of support and that we start to get to that individual accountability where people are going to have to cede a little bit of power if we want the world to be equitable for others. I’m not completely sure that across the legal industry in particular, or across our workplaces, that we’ve gotten to the place where there’s an understanding that it’s not just about the casual remarks that people make, that may make people feel that they don’t belong, and it’s not about kind of overtly racist or biased actions. We have entrenched hegemonic structures in place that perpetuate the status quo. By perpetuating the status quo, we are perpetuating inequity, and here each and every one of us is going to need to do something different in a way that’s not performance, in a way that other people may not be able to see, if we do intend to make a real meaningful progress on DEI.

JC: Great to hear that there are 11 diverse professionals with full-time roles at Hogan Lovells. There are thousands of employees at the firm, what do you do to influence others within your organization when it comes to actually implement the change that you’re looking for under equitability and inclusion?

BM:  I believe in inspiration rather than a threat, and I think you have to create a vision for people that is achievable but aspirational that people can buy into, with our D&I goals, we’ve helped to do that. Additionally, having a leadership team that is diverse, shows people that we can have a profitable law firm with diversity at the top. But look, we have to align incentives. We need to align the work that we do for our clients with our diversity aspirations. We need to inspire people and show them what happens when we get a lot of different views in the room. Case studies work extremely well. We went to this client, we pitched in this way, this was the result, we did this work with this team because this individual has this background and individual experience. They were able to pick up on this issue that others didn’t pick up on, and that made the difference for our clients. Telling the stories.  I believe in storytelling, and I believe in institutional change and individual change on the basis of the stories that we tell, using these real-life case studies and getting our senior leaders to be bards for us has worked incredibly well to promote change.

Additionally, the policies and some of the initiatives that we have to incentivize behavior, like our new initiative for diversity and inclusion billable credit hours, safety hours for our under-represented lawyers in the US starting November 1, and for the rest of the world starting in January, in alignment with their billable years to support and promote individuals doing diversity and inclusion, aligning these incentives is incredibly important to make sure that we get the behavior that we see.

JC: Bendita, it has been absolutely fascinating chatting with you today, and I’m conscious that we’re coming up on time, I have one last question for you.  If anyone’s listening and thinking, “Wow, this is amazing. What can I do in my firm or at my company, in my law department?” What tips would you have to recommend to other people to be successful in implementing equitability and inclusion programs?

BM: So first and foremost, I would suggest that you get diversity, equity and inclusion professional who can organize you and devote all of their time to it. As an individual contributor, allyship is incredibly important, but I believe in intentional ally-ship, I’m gonna steal your deliberate ally-ship. You need to do four things.  You need to show up, you need to be there when diverse things are happening when diverse people are gathering, and when there are education sessions, show up, listen up. Educate yourself on DEI and about the lived experiences of diverse people, speak up, when the outcomes that you see aren’t the outcomes that we seek, then you need to use your voice and say something, you need to ask the question, you need to take somebody aside and interrogate them – and last, talk up, promote the achievements of under-represented people and others in your organization.   It’s the individual tactical action that’s going to win the day. Each and every one of us has a bit of privilege, and we ought to exercise it in favor of the outcomes that we aspire to, and that’s diversity, equity and inclusion for all of us.

JC: Fantastic. You have been inspirational to listen to. Thank you so much for joining us.

BM: Thank you, John, I appreciate it.

About the Author(s)

Bendita Cynthia Malakia the Head of Diversity and Inclusion at Hogan Lovells.  The interview host is  John Croft, President of Elevate.

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