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Join the Conversation:  Benefit of the Doubt

We all make mistakes.  On a recent team I managed, everybody made mistakes – from the contract document reviewers, to the eDiscovery vendor, to the associates.  Yet some people’s mistakes will become easily forgotten while others will become remembered for their mistakes.  What determines whose mistakes get forgotten and whose get remembered?  Could it be our race, ethnicity, and gender? 

I will argue that in our workplace and our community, the difference between those who succeed and those who don’t depends heavily on the way that others treat or react to our mistakes.  I will argue that it is not the gravity of our mistakes, but who receives the benefit of the doubt when we make mistakes, that determines our ability to overcome mistakes and succeed.  And we live in a society where we give out the benefit of the doubt based on race and gender.  So if we want to give women and racial minorities an equal opportunity to succeed, we need to start giving them the same benefit of the doubt that we give to white men when they make mistakes. 

Research shows that when a black woman leader makes a mistake, people will see her as less effective than her white male, black male, and white female counterparts who make the same mistake.  In one study, Ashleigh Shelby Rosette and Robert Livingston asked 200 participants to read a newspaper article about a corporation, its senior executive officer, and the corporation’s recent performance.  Participants were randomly given one of eight variations of the article:  (1) company earnings increased and headshot showing a white male executive; (2) company earnings increased and headshot showing a white female executive; (3) company earnings increased and headshot showing a black male executive; (4) company earnings increased and headshot showing a black female executive; and (5)-(8) company earnings decreased and the same set of race-gender headshots.   

Participants were then asked to evaluate the executive on leadership effectiveness using a 7-point scale indicating the degree to which they agreed with each of the four following statements:  (1) I think that Jones is an effective leader; (2) I would have confidence in Jones’s ability to be successful; (3) I would recommend Jones for other leader positions; and (4) An organization led by Jones would be effective. 

Rosette and Livingston published their results in an article called “Failure is not an option for Black women:  Effects of organizational performance on leaders with single versus dual-subordinate identities.”  Leaders who were paired with an increase in company earnings were rated as more effective than leaders paired with a decrease in company earnings.  Men were generally rated as more effective than women, all else equal.  White leaders were generally rated as more effective than black leaders, all else equal.  When company earnings increased, white men were rated as more effective than black men, white women, and black women.  And when company earnings decreased, black women were rated as less effective than white men, black men, and white women (on average one to two points lower on a 7-point scale). 

The study participants consisted of 50% women.  Participants were about 40% white, 30% black, 15% Asian, 4% Hispanic, and 6% “other.”  They were a mix between graduate students, college students, and working adults.  They had on average over five years of work experience.  They were told that the purpose of the study was to investigate how people make inferences from the newspaper articles they read. 

The study concludes that black women executives need to pay exceptional attention to minimizing mistakes on the job because they suffer a greater penalty for making mistakes than white men or single minority status employees like black men or white women.  When people make mistakes, we are more likely to give them the benefit of the doubt when they are white or male. 

Other studies corroborate this finding – that race and gender affect how harshly our mistakes are judged.  For example, when evaluating legal research memos, law firm partners give poorer reviews and lower ratings to memos authored by black associates than those authored by white associates – even when the memos are exactly the same.  Partners are more likely to give the benefit of the doubt – i.e. make the more forgiving interpretation, assume competence, give a second chance – to white associates than black associates.  For example, Arin Neeves conducted a study where she found that for the same memo, partners consistently gave white associates comments such as “generally good writer but needs to work on…” but gave black associates comments such as “needs lots of work.”  At the same time, partners were more likely to overlook, minimize, and ignore mistakes made by white associates than black associates.  In reviewing memos authored by black associates, partners pointed out more spelling and grammar errors, more technical writing errors, and more factual errors than when reviewing the same memo authored by a white associate.  This was true regardless of the partner’s race or gender. 

Similarly, in performance reviews, supervisors are more likely to criticize and call out the mistakes of women than men.  Kieran Snyder collected almost 250 performance reviews from large technology companies, mid-size companies, and smaller companies.  Of the 250 reviews, about 70% contained criticism.  However, almost 90% of reviews of women contained criticism, and only about 60% of reviews of men contained criticism.  Further, supervisors were more likely to afford men the benefit of the doubt and give them constructive criticism that presumes ability and potential such as “hone your strategies for guiding your team and developing their skills.”  Supervisors were more likely to give women purely negative criticism such as “sometimes you need to step back to let others shine.”  Negative personality criticism – such as “watch your tone” or “step back” or “be less judgmental” – showed up in 71 of the 94 critical reviews of women and only two of the 83 critical reviews of men.  This was true regardless of the supervisor’s gender:  both men and women supervisors are more critical of and give less favorable reviews to female employees than to male employees.       

These studies show that when people make mistakes, supervisors are more likely to give the benefit of the doubt to white men than to women and racial minorities.  Because everybody makes mistakes, those who are given the benefit of the doubt will inevitably get ahead those who get judged more harshly for their mistakes.  Those who are given the opportunity to make a mistake or two are inevitably more likely to succeed than those for whom failure is not an option. 

That’s why Tina Tchen was spot on when she said that “the opportunity to get good work and the opportunity to make a mistake or two are the most important factors for the success of a young lawyer.”  As supervisors, we need to practice giving women and minorities the benefit of the doubt.  When we see them make mistakes, we need to give them the same benefit of the doubt that we give to white men – if we want to give them an equal opportunity to succeed. 

I am not advocating that we take any benefit of the doubt away from our white male team members.  I am advocating that when we see our women and minority team members make a mistake and find ourselves frustrated or judging them as incompetent, we need to take a step back, assume that they are competent and have potential to succeed, and remind ourselves that it is our job to teach and train them to succeed and not to judge them too harshly.  If we don’t do this consciously, the research shows that we won’t – and we’ll go on doing these things, automatically and unconsciously, for only the white men. 

None of the corporate diversity initiatives I've read about tackles the disparity in how supervisors treat mistakes.  Even diversity initiatives that address unconscious bias tend to focus more on recruiting than the everyday judgment of supervisors that shapes the eventual assignments and performance reviews we get and our prospects for promotion and success.  

The studies don’t offer a satisfying solution either.  In “Failure is not an option,” Rosette and Livingston argue that black women “should take special care when organizational goals are not met (perhaps due to conditions beyond their control) to clearly communicate the circumstances to management, their peers, and even their subordinates,” but how do we know that communicating the circumstances is enough to offset the more negative judgment?  Rosette and Livingston also suggest that “Managers should be aware that such unfavorable bias may persist and take measures to make sure that leaders possessing more than one subordinate identity are evaluated fairly when goals are not achieved,” but how do we ensure “fair evaluation”? 

Arin Reeves, lead researcher in the legal memo study, recommends using a blind-grading system.  Kieran Snyder, author of the performance review study, calls for further investigation into performance reviews by HR to uncover and correct patterns of systematic bias.  But blind-grading systems and correcting performance reviews only go so far in fast-paced team environments where supervisory interactions range from in-person meetings to calls to emails, all of which affect the next assignment we get, how much responsibility we are given, and whether we are invited to join the next project.  Using blind-grading systems and correcting performance reviews also doesn’t put the burden of change on managers themselves.  They help patch up certain disparities, but they don’t address the root of the disparities:  they don’t necessarily change the way supervisors treat diverse team members in everyday decisions and judgments. 

I do not think that our disparate treatment of mistakes is just a corporate America problem.  I think that the criminal justice system is a living embodiment of black men suffering a greater penalty of making the same mistakes as white men.  Federal criminal sentences reveal that judges sentence black men to prison terms 10% longer than white men who are arrested for the same offense with the same prior record.  From corporate America to the criminal justice system, our race affects how harshly our mistakes are punished.   

In Florida, for third-degree felonies – the least serious and broadest class of felonies – black men receive 20% more prison time than white men who commit offenses with the same gravity, under the same circumstances, and with the same criminal histories.  In one county in Florida, two teenagers were charged with armed robbery.  For the white teenager, the prosecutor – with the approval of the judge – ignored the sentencing guidelines and gave a plea offer for probation with no jail time.  The black teenager was sentenced to four years based on the sentencing guidelines, and his lawyer told him that “it was the best deal he could get.” 

Our criminal justice system, like corporate America, is more likely to give white men than black men the benefit of the doubt – the more forgiving, less culpable interpretation, trust, leniency, a second chance.  While overall sentences have become more lenient, “white males have seen larger declines in average prison sentences than black males.  Black males did not benefit as much from this increased leniency.”   

It would be interesting to review sentencing hearings and opinions and compare the language used when sentencing white defendants versus black defendants with respect to giving the benefit of the doubt.  I’ve not done that, but here is one sentencing that illustrates a judge giving a white defendant a whopping benefit of the doubt.  In 2016, when a white male Stanford University student was found guilty of three counts of felony sexual assault and faced up to 14 years in state prison, the judge went out of his way to grant the defendant probation with a 6-month county jail term.  Based on the defendant’s convictions, the judge was statutorily prohibited from granting probation “except in unusual cases.”  Nonetheless, the judge minimized the defendant’s culpability, trusted his words, believed in his potential to succeed, and gave him probation. 

In the sentencing transcript, the judge stated that he assigned “less moral culpability” to the defendant on the basis that he was not “completely sober.”  The judge treated the defendant’s prior record of criminal conduct as “favorable,” even though two other women reported unwanted touching by the defendant and the defendant had a lengthy history of excessive drinking and drug use including a pending case involving minor-in-possession-of-alcohol, evading arrest, and possessing a fake ID

The judge credited the defendant’s expressed remorse as “genuine,” even though he had run from the scene of the crime, lied during his testimony, and lied to the probation officer.  When predicting the defendant’s ability to succeed on probation and his risk of danger to others, the judge simply stated, “I think that he will not be a danger to others.  I think he has a good chance of complying with the conditions of probation.”  It is as if the judge overlooked the defendant’s pattern of excessive drinking and drug use, the fact that he had just been convicted of a violent felony involving sexually assaulting a woman behind a dumpster, and the fact that he had been accused of inappropriately touching other women in similar social settings. 

At every turn where doubt was present, the judge gave the defendant the benefit of that doubt.   At the same time, a 16-year old black teenager convicted of rape involving an incident on his high school campus in Long Beach, California – also no prior convictions – was sentenced to six years of state prison.  As in corporate America, it is not the gravity of the defendant’s transgression, but who receives the benefit of the doubt when he transgresses, that determines who is afforded the opportunity to succeed in our society.

It’s one thing to give women and minorities harsher performance reviews for the same mistakes, but isn’t it an even graver concern that we consistently give some people more prison time than others for the same conduct under the same circumstances?  By doing so, we enable some to succeed while condoning the falling behind of others – not only professionally, but in their ability to build a life, finish school, make a living wage, support loved ones, be happy, and live.  By doing so, we create and perpetuate racial disparities. 

Because we all make mistakes, our success - whether we know it or not - relies on our ability to make a mistake or two and not be judged too harshly for them.  Yet only some of us get that benefit; many of us do not.  This is a call to all those who have the power to judge harshly to extend the benefit of the doubt more liberally, more equitably, and especially to those whom we routinely and unconsciously deny it.  If failure were not an option for any of us, we would hardly have any successful people.  Our success is made possible by the forgiving of our failures and mistakes.  Failing and making a mistake or two has to be an option for all.   

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