How Attorneys Can Address Unconscious Bias In Law Practice

On this week’s episode of Lawline's Lawyers Who Lead podcast, Sigalle interviews Sejal Thakkar, Founder and Chief Civility Officer at TrainXtra, an organization that helps leaders create positive, safe, and respectful workplaces through customized training and coaching. Sejal shares her story of how her childhood and employment law experience shaped her mission to educate and empower people to create a world where everyone is treated with dignity and respect.  Listen to the full interview or read highlights of the interview below! Transcribed answers were edited for readability.

Interview with Sejal Thakkar

On How Being Bullied Contributed to Becoming a Lawyer

Being a Victim of Bullying Made Her Want to Help Others Going Through Similar Situations

I'm the daughter of immigrants. My parents moved to the United States in 1974. I grew up in an all Italian neighborhood where we were the only Indian family. So I dealt with a lot of harassment, discrimination, bullying at a very young age. And so in my TEDx, I share some examples of what it was like to be on the victim side of bias, being on the receiving end of these types of behaviors, which were very harmful to me.

I shared this one story about when I was in high school and I was on my way to lunch and I stopped at my locker. And there was a note that somebody had put on my locker that said, go back to your country. By the way, I was born here. So this really is my country, but it didn't matter. It was still very hurtful and harmful. And then later on, that same day, some girls started making fun of me calling me dot head. I just lost it in that moment. And so I talk about how it's unfair that children of immigrants, anyone that's being treated that way, have to go through that, but really helping people see that we can do something about those situations. 

And what I decided to do was go to law school, become an employment lawyer, and try to do what I can to affect change at the source. 

On Becoming an Employment Law Defense Attorney

A Twist That Was Pivotal Because She Saw Bias From a Different Perspective 

My legal journey began in 2000. That's when I got licensed and as far as how I got to employment law, that really just unfolded on its own. I first initially started doing a worker's compensation and then I started doing unemployment law and really just got drawn to the cases that dealt with harassment discrimination. It felt like since I'd gone through it, I can do something about it. 

And that was the twist in my story, because I ended up becoming a defense attorney. So now I got to actually see bias from a whole different perspective and becoming a defense attorney was not really any kind of plan I had, again, it just fell into my lap. It was a great opportunity. I took it. 

But it was pivotal in my journey because I now got to see bias from a different perspective. Cause I was actually now defending people who had been accused of harassment. So here I was doing a total flip. It really changed my perspective because it was at this point that I really had to recognize that I had to work through my own biases I had because of my own experience so that I can actually do a good job as an attorney. And so there was a lot of inner work that I had to do there to battle and deal and overcome. 

Once you start doing this work and you understand what your own biases are, and especially unconscious bias, which is an area that is not talked about a lot. Then you can understand the power that it has over our day to day actions and then give 'em strategies to help mitigate that. 

On Her Journey from Employment Lawyer to TrainXtra

Wanted To Help Organizations Be Proactive Rather Than Reactive to Lawsuits

For most of my career, I was a defense litigator. So I was representing management and HR in cases that primarily dealt with harassment and discrimination, wrongful termination type of cases. So that's what I spent a majority of my career doing.

And then during this time I discovered that I could do something to help organizations be more proactive rather than waiting for the lawsuit to come. And I started doing some training and facilitating at some universities and I'm just like, you know what? This is where I can make a difference and utilize my legal skills, the stories that I had learned, the experiences that I had gone through both personally and professionally to deliver customized workshops. 

And so that led me to what I'm currently doing, I started my own company in 2017, to really work with organizations to create better workplaces.

On Unconscious Bias Training and the Power of Language

Replacing the Word “Bias” with the Word “Belief” Helped People Better Understand and Receive Information  

I just saw that there was so much lack of awareness on that topic of unconscious bias. Just the word itself "bias" has a negative connotation to it. So people will shut down when we start having these conversations and I'm like, wait a second. We cannot get to belonging until we help people understand what unconscious bias is, how it's normal, and that there are things we can do to learn what our own hidden biases are so that we don't harm other people unintentionally, unconsciously, because as a defense attorney, that's what I started seeing.

I was defending these managers and these leaders and when I started to actually get into what was leading to these situations, it was a lot of hidden bias that was resulting in microaggressions, in these subtle acts of exclusion that were happening over time. And because nobody had the conversation with that leader, when it first started to happen, the behavior continued and now it looks like intentional discrimination. And here comes a lawsuit. 

I wanna flip that dynamic altogether and so in my trainings, what I did was I started replacing that word "bias" with the word "belief" and it made a significant difference because now when I would say, oh, we all have hidden beliefs, people were more open to listening to the discussion versus me saying, we all have hidden biases. 

Because again, that word itself bias has become vilified in the media and all of that stuff. And so that really was the motivation. I'm like, I need to figure out a way to get more people to understand what unconscious bias is. 

On Reframing Microaggressions as Subtle Acts of Exclusion

The “Micro” Part of the Word Tends To Minimize The Concept For Some People 

We've seen so many words change in just the last couple of years and that's good. That means we're growing. That means that we're actually seeing people's perspectives and understanding that, hey, these words need to change.

Another word that, you know, I've been changing a lot of too, is the word microaggressions. I realized that word, just because it has "micro" in it, tends to minimize it for some people. Makes people feel like it's no big deal when microaggressions are super harmful, very harmful.

And so I read this book, Subtle Acts of Exclusion and they're reframing microaggressions and calling it subtle acts of exclusion. And I just really love that. And so in my workshops, I've changed now and am trying not to use the word microaggressions because I know that it might minimize the impact or the potential impact of those actions. 

Just because of the association with those words, you can see how somebody might think, oh, that person is just being too sensitive. They just need to stop being so sensitive about everything. But what they don't realize is that microaggressions happen daily. And frequently. And so when you look at the potential for harm, it's actually greater in many cases than macroaggressions are because they're not happening as often. 

And especially now with heightened awareness, people are less likely to occur in macroaggressions because they know that everything's being documented or recording videos and so people are more careful about that. Whereas microaggressions have actually increased significantly because we're doing everything remotely, we're in a virtual world. And so it's a lot easier to say something or engage in a subtle act and nothing's gonna happen if you do that. So it's more likely to happen actually. 

And so we absolutely have to recognize that and we have to be very mindful of the words we use as well, because people are more sensitive. People are wanting things to change, to be better for them and the future generations. So I think it's all good stuff that's happening. 

On Seeing a Problem That Wasn’t Being Effectively Addressed 

Companies Were Promoting People Into Leadership Without Training and Waiting Too Long to Address Problematic Behavior

As an employment defense attorney, I saw so many cases that dealt with inappropriate comments, sexual overtures, all kinds of demeaning behavior, abusive conduct that was harmful to the workplace. 

I was always baffled by the fact that there was ineffective training. That people were getting promoted up the ladder because they met their numbers. They can get the job done, but they were not good leaders. They were not able to lead a team of people. And so really just started educating more, started talking to people about what they should and shouldn't have done and just was like, wow. Okay. I can't blame the supervisor because he hasn't received the adequate training or education or information on how to do his job. 

So I started just going and evaluating what I was doing. I was receiving excellent experience and opportunities. I got to try cases. I knew it wasn't the right fit for my sort of core values, because I'm more of a conflict resolution person. And so in there, it felt like if I represent the company and something really did happen and the person should be compensated that maybe I can in fact change at that source. 

Also, the other problem I started seeing was that a lot of times companies were waiting too long to address this behavior. So they were waiting till it was a formal complaint or some sort of illegal conduct versus dealing with the behavior when it first turned off as being rude, maybe uncivil, a subtle act of exclusion or behavior that was maybe not illegal, but short of that, and they weren't addressing it properly.

And so this whole idea of how can I do what I can to help? It just came together that, especially after my son was born, I decided I didn't wanna work for the law firm anymore. I needed to work from home so I could be at home with him. And when I started doing more education at that point, it just came to life. Like this is my passion. Here's where I can make an impact. And so I just went for it. 

On Motivation to Start Her Own Company

Being Able to Focus on Her Son, Doing Fulfilling Work, and Solving the Problems She Saw Arising

Yeah. I went on my own and I worked from home for a number of years. And then as my son got older, like most of us, we needed a steady income. And so, I said, I'm gonna go back to working again. And so for a short period of time, I went back to work and I needed to be with my son more. So that was the driving factor even when I went into that job, I said, look, I'm not looking to work law firm hours. I've been there. I've done that. I'm not looking to do that. I just want eight to five. But it soon became me working around the clock, on the weekends and really felt like I was back in the law firm setting.

So it just wasn't the right fit. But my primary motivation has always been to do what I can to be around my son as much as I can. When I decided to leave that position, I said, you know what? It's now or never. What makes you feel motivated, makes you feel fulfilled? What kind of difference do you wanna make?

Give it a shot. If it doesn't work out, you still have your law degree and so you can always fall back on it. And so I just truly, I, I think that was the first time where I would tell you that I just truly believed in myself and had faith in myself and said, let's go try to do this. And I'm just super grateful to be able to do the work I am doing today. And that I'm still standing, because it was a hard decision. It was a very hard decision. 

On the Services TrainXtra Provides

Anti-Harassment, DEI, Unconscious Bias, Allyship, and Civility at Work

Yeah, I focus on helping companies create better workplaces. So I have a few programs that I offer starting with civility at work. And I still do anti-harassment training. I do your diversity inclusion training. I do a lot of unconscious bias and subtle acts of exclusion workshops. I do allyship skills, so I do a lot of different topics. 

But my number one program that I really am trying to just push as much as I can on companies is called civility at work. And it's a program that I created, because I've done all these other trainings, I saw a lot of gaps happening where they weren't connecting the dots between all these different programs. And so a lot of times people just didn't know what they should do in certain situations. And so I created a program to really give a full foundation of what employers expect from employees and what employees can expect from their teammates and each other. 

So it's really about helping people see that. Look, we all play a piece of the culture directly and indirectly with our behaviors and our perspectives. We're working from home, globalization, multi-generations work together. You're gonna have diversity. What that diversity looks like in your organization is gonna depend on where you are and who you have, but you're gonna have diversity, whatever that is. And so inherent in that is that there's gonna be a likelihood of conflict and it could be positive, it could be negative conflict, but there's gonna be conflict. And people need to know what to do when there is. Conflict arising from our differences. How do we overcome that? 

I get to bring a lot of the employment law cases and the stuff that I've seen organizations do and not do, and be able to tell those stories in these workshops and really give practical guidance to people. Because a lot of times people come out of the training and then they just don't know how to apply it to their day to day. So I'm all about here's five concrete things you can take away and start doing right now to make a difference. 

On Some Practical Advice She Gives in Her Trainings

Focus on Awareness, Pause, Ask Why, and Take Action

So the first step is awareness, right? We're all different. We all have different experiences. Our unconscious biases are also gonna be different from each other. So we need to understand our own unconscious bias. 

There's an online tool called the Implicit Association Test. All of these psychologists came together and put this online tool and it's free. It's broken out into different categories and you could just go through and just take those different sections. And then it just identifies for you what your natural tendencies are. And that information is so valuable, right?

It's so valuable because, you know, it helps you pause. So when you're making important decisions and you do this online tool and it says, okay, in these kinds of situations, you have a natural tendency to lean in this way. You have that valuable information that you can factor in to your decision making process, make a better decision. That would be an example of a practical tool that I would give in one of my workshops. 

Another one would be look, when you're about to make a decision, build in a pause. The difference between our conscious thinking and our unconscious thinking is, if you think about it, it's a matter of speed. And so if we can just slow that process down. Because the scary part of unconscious bias too, is that those unconscious beliefs that you hold, are there because of something you've gone through and so you might actually have a different opinion about that situation now that you're older and you have experienced a lot more in life, but your unconscious bias might be because of something you've gone through a long time ago. So building in that age for holding off is super important.

And then ask why? Ask yourself, why am I leaning in this direction? Why am I making this judgment about that person when I don't even know them. Really figuring out what is really causing that? Is that just because you are hardwired to be that way? Is that because of something someone said to you sometime? Really just asking why you're reacting that way. And then take action. 

On the Golden Rule v. Platinum Rule

Make Time, Be Present, And Connect With Other People To Learn How Someone Wants To Be Treated

I think we've all heard of the golden rule, which is to treat other people in the way that you wanna be treated. And then I'm encouraging people to use, what's now being called the platinum rule, which is to really treat other people in the way that they wanna be treated and everybody wants to be treated differently. 

And so in order for you to figure out how they wanna be treated, you actually have to make time. And be present and connect with other people so that you can learn how that person wants to be treated.

On Unconscious Bias in Law Practice

Needs to be Taught in Law School and Law Firms Need to Invest in Effective Training Across All Aspects of Practice

The issue with the legal industry is that they need to do more to educate the lawyers and people in the legal profession in general about bias and cross-cultural competency too. I went on practicing law for, it wasn't til way into my career where I actually started learning about unconscious bias and how it impacts every single decision we make. And this is something that needs to be taught to law school students, right? It's a major gap. 

The first step would be for law firms to really invest in effective training in the legal industry. How an attorney does the initial interview, an intake of witness or of a plaintiff or a defense. And they're not sure how their unconscious bias might be impacting whether they make that person feel welcome or not, that's gonna impact the ability of how they're gonna litigate that case or how they're gonna manage that case. 

Within the first seven seconds of meeting someone, when I say meeting someone like you just, you see them with your eyes or maybe you haven't even talked to that person yet. But within the first seven seconds of seeing somebody or meeting somebody, you're making 11 judgments about that person unconsciously. You're not even aware that your brain is making these assumptions about this person. And then you spend the rest of your time after those initial impressions, looking for information to confirm those existing impressions you made of that person, whether or not they were correct or not.

So you can see how, if you're in the legal field and you're not aware of that fact or that you're not able to be conscious and say, okay, I still have to be neutral here, or I have to remain objective. And so if you are not a law firm that's understanding that like there's no way you're gonna survive. 

This is another example for the legal field. I was doing workplace investigations as a defense attorney, so a lot of employment law investigations, and then it wasn't way into doing these investigations when I finally started working for an organization where we got put into some very specific training where one of those training courses was trauma informed witness interviewing. And I was like, wait a second. I am just learning this right now? Because this is completely different than the way we've been taught how to do it our whole career. So that when somebody's gone through a trauma, the way that their brain processes information and how they remember certain details is very different than someone who hasn't gone through a trauma. A lot has gone on in the last decade. A lot of neuroscience, a lot of things we have learned about what the brain can and can't do that changes the way that we do this moving forward.

On Approaching Unconscious Bias

It’s Not About Being Perfect, It’s Showing Up Better Tomorrow Than Today 

I think that question is different for everybody, right? Like how we process information. The way that I look at it is really just, how do I show up better tomorrow than I am today? Simple as that. There's tons of room for improvement, but I think that there is a lot that we're learning and it's all about just continuing to learn. 

And it's not about us being perfect at getting all of this at once or us not making mistakes, but it's about learning. Because there's a lot that we've learned recently that we can apply to our situations now, especially in this very unique moment in history. Because of COVID and because of just the things that we've gone through in these past few years, there's a lot of people doing this work and so we need to maximize the impacts. 

Look, I've been there. I have that natural tendency as well, but it's all about retraining your mind and it's possible. There are tools, there are strategies to help you break those tendencies. 

Just the other day I laughed out loud on myself because I was like, I was watching a movie and then in my head, like all these thoughts kept popping up about, I need to do this and I've got this to do. And then the guilt kicked in, why am I watching this? All of that. And then it's, I felt all of it. And I just, I actually laughed out loud and I'm like, stop, just stop and enjoy this movie.

And you get to the point where you're like, yeah, I don't need to do all of that. I can just be fine right here. But it's constant effort. It's work. It takes work.

On the Importance of Unconscious Bias in Major Decision-Making

Take time to Assess Your Natural Tendencies and Take Action Make Decisions based on Objective Factors  

The issue becomes when you're making important decisions, right? Who to hire, who to promote, who you're gonna give certain benefits to. So the other thing you could do is when you're making really important decisions that are gonna have a major impact on people's lives, especially then it's important to realize our natural tendencies, right? For day to day interactions, we all do that. And there's plenty of science to back this up.

But the point is that if we don't understand how it can impact our decision making as an attorney, who are you gonna pick on a jury? How are you gonna treat a witness? How are you gonna assess credibility if you're doing investigations? How you're gonna depose somebody. If you can't as an attorney gain somebody's trust to be able to share information with you, to be able to tell you the truth so that you can come up with the legal plan to help defend that person. If they don't feel comfortable opening up to you, then you can't do your job. 

So I think it's very important to recognize that this unconscious bias is acting like you're on autopilot. And so how do you get off of autopilot in these very important times so that you could make sure not only that you succeed at whatever your profession is, but that you give this person a fair opportunity for who they are here today. Not something that happened to you. For example, with me, the kids that were bullying me when I grew up were Italian. And to this day, if I meet somebody and I find out they're Italian, I have a negative reaction immediately to that. You can't blame me because of what I'd gone through. I'm gonna have that reaction that doesn't make me a bad person.

It's if I now treat this person unfairly, because of that reaction that I'm having, that's what makes the situation bad. So you can have biases and in and of itself, they're not good or bad. It's how you react to those. And so you just wanna check in, to say, is my unconscious bias in line with what I believe today, right now?

Of course not. I don't care if you're Italian or whatever, I'm gonna be a nice person to you. That's where I'm at today. But that unconscious bias is there because of what I've gone through. That doesn't make me a bad person. It's just now I gotta be conscious that, Hey, if I'm gonna hire somebody and there's an Italian person, I have a natural tendency, so make sure, Sejal, that you hire this person based on objective factors, based on the skills, the qualifications, the requirements, et cetera, et cetera. And so that's really where I think we need to do the work and it's doable. It just requires effort. 

On Removing Judgment from Discussions About Unconscious Bias

Focus On Learning Our Own Tendencies, Beliefs, Perspectives, and Then Figure Out How to Take Action

We can't change what happened before, but we can change what we do now and how we react to situations now. For many of us, this is the beginning of our journey. As long as more people understand that it's not about judgment. It's not about canceling anybody. It's not about shaming anybody. It's really about, okay, we need to learn about our own tendencies, our own beliefs, our own perspectives, and then figure out where do you wanna go with that?

And that's the thing, is we just haven't had the tools to be able to do that before. We weren't given the support to do that before. We weren't given the resources to do that before. We certainly weren't given the education to do that before, but now we do, we have the internet. We can get online, we can type in unconscious bias and do the work to learn about it on our own, or hire a professional to come in and teach you and train your teams on how to do this so that you can succeed as an organization, but also put your people first.

On the Issue of Civility

Incivility is a Range of Behaviors and We Should Empower People With the Tools and Skills to Address Them

So generally when you're at an organization, your illegal behaviors are your sexual harassment or discrimination, any kind of harassment for any kind of illegal behaviors, but it's a whole spectrum. It could be abusive conduct bullying, which is not illegal, but still bad behavior. It could be dismissive behaviors. It could be rude behavior. It could be subtle acts of exclusion or microaggressions. It's a whole range of behaviors. And so I talk to organizations about civility. We wanna empower your team to start addressing those behaviors when they first start to happen. Because these behaviors are not gonna go away until we address 'em, they're gonna continue and they're gonna get worse until it becomes illegal behavior.

So let's empower all of your team, not just your management, but everybody on your team to be able to recognize what's going on and then empower them with the skills and the tools and the scripts to do something about it. 

Now, obviously all of this only works if there's psychological safety. We want to encourage people to bring these issues forward or deal with them on their own, but we need to give 'em the tools to be able to do that. We don't wanna just tell everybody, you know what, anytime there's a problem, go to HR. Which is what a lot of organizations do. We wanna teach people that you're both adults, you can work on your own. And here's some ways, some shared language, some common things we can say to each other, some common ways we can deal with each other. 

If it's something like sexual harassment, obviously, then you gotta get HR involved. So I think there's a, there was a lot of emphasis on issue escalation versus what I'm out there talking about issue resolution. Let's help people learn how to resolve these issues on their own.

And then also just talking about civility as making a commitment to engage in certain ways to try to resolve the problem, rather than going into it with some kind of negative sort of approach, assume positive intention from each other and to know that you're all on the same team. Because again, when I saw this uncivil behavior happening in the workplace, a lot of times. It wasn't that there were toxic work cultures. It was just that this behavior wasn't being addressed. And anytime you allow that behavior to go without addressing it, it's a matter of time till it turns into a toxic work environment. 

On What Leadership in Law Means

Empathy, Communication, Conflict Resolution, Ethical Standards, and Diplomacy

I look at leadership and the basis of leadership as the capacity of the leader to change the mindset of other people. And so lawyers have a lot of wonderful skills, right? We have hopefully empathy for others, communication skills, analytical negotiation skills, all of these things that we can use. Conflict resolution skills. Ethical standards. Diplomacy. These are all skills that I would hope that most lawyers have. And so I think you can use all of those in helping you lead and influence change to help change other people's mindsets.

On What People Seem To Misunderstand About The Work She Does

Training is Not the Entire Solution, It’s One Way to Help People Change Behaviors

I think people might think when they look at what I'm out there doing that I'm out there saying that training is the only solution. And that is absolutely farthest from the truth. What I'm out there saying is training is an important part of the solution to creating better workplaces, right? It's not the only solution. I've heard a couple people say we're just out there talking about training is the only thing that's gonna fix everything. And I'm like actually no, training in and of itself alone is never gonna work. You need to focus on how you're gonna change behaviors in your organization and training like my civility at work program is going to get people's buy-in to do that work of changing the behavior. 

So unless the person knows about what they're expected to do or what is going to create psychological safety, we can't really get them to move to motivate them, but it's not the only solution. It is just a very important part of the solution for cultural change.

On the One Thing She Could Improve About the Legal Industry

More Education on Unconscious Bias, Cross Cultural Competencies, and Bystander Intervention

More education on unconscious bias. Cross-cultural competencies is another area of bystander intervention. There's just so much that needs to be done in that whole entire industry as far as education goes. 

Lawyers Who Lead is a weekly podcast that celebrates lawyers who are making powerful changes through extraordinary leadership. Each week, Lawline’s Chief Storyteller, Sigalle Barness, interviews a lawyer who is driving meaningful change in the legal industry. Guests represent a diverse and exciting range of experiences but with one common thread, the pursuit of bettering the legal profession. 

Each episode explores the guest’s journey to leadership, the underlying principles that helped them make an impact, and devises ways listeners can apply these concepts in their own lives.

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