New Zealand Law Society

Navigation menu

The paradox of meritocracy

04 May 2018 - By Laura O’Gorman

Overview

The New Zealand Law Society has launched its Gender Equality Charter for the legal profession, as an initiative to support the retention and advancement of women in the legal profession. The introduction to the Charter quite properly observes that a commitment to the principles of diversity and inclusion is not only the right thing to do, but it’s also critical to the success and sustainability of the legal profession.

However, for this initiative to succeed, it is important to understand the “paradox of meritocracy” and the need for individuals to take personal responsibility for the values that are endorsed. A key element is understanding how the mind works, both consciously and unconsciously. This individual learning process is not something that can be delegated.

The Paradox

In true meritocratic systems everyone has an equal chance to advance and obtain rewards based on their individual merits and efforts, regardless of their gender, race, class, or other non-merit factors.

A trophy being held high

The “paradox of meritocracy” is the disturbing conclusion that when an organisational culture promotes these commendable values (compared with when it does not), managers may, ironically, show greater bias in favour of men over equally performing women (see Emilio Castilla and Stephen Bernard “The Paradox of Meritocracy in Organizations” in Administrative Science Quarterly, Vol 55, issue 4, 2010).

The fear (supported by numerous empirical studies) is that endorsing meritocracy principles can serve as an unintended “trigger”. Managers might wrongly take comfort that they are impartial, which could discourage them from closely examining their own behaviours for signs of cognitive bias. Similarly, because they endorse the cultural norms, they may feel that their own motivations and actions will not be questioned or interpreted as prejudiced. The lab experiments conducted by Castilla and Bernard strongly supported this hypothesis, showing that when meritocratic values were expressly endorsed, men earned (on average) a higher bonus than equally performing women. In contrast, women (on average) earned a higher bonus than equally performing men when the core values did not expressly refer to meritocratic values and instead emphasised the regularity of evaluation and managerial autonomy.

This paradox potentially explains why companies that describe themselves as “meritocracies” have the lowest rates of diversity (see Liesle Theron “Unconscious bias trial at Victoria University Law School”, LawTalk 906, May 2017, page 58).

So what should we do?

This first step to solving this problem is to acknowledge that, as human beings, we are all inherently biased. It is simply a fact that we are physiologically built with a wide range of instinctive reactions. The physical responses of this type tend to be obvious – we jump when startled by a loud explosion, for example. Less obvious are the cognitive responses. Many are discussed, with helpful examples, in Daniel Kahneman’s excellent book Thinking, Fast and Slow (Farrar, Straus and Giroux, 2011). These include status quo bias, confirmation bias, the halo effect, in-group bias and cognitive ease, framing effects and selective perception. These tendencies (and many others) impact us in our personal lives just as much as our professional. It takes concerted effort to notice them and address their effects.

Just like we would expect a pilot to learn how to fly an aircraft before operating commercially, current and future leaders within the legal profession must seek to take conscious control of how they behave and make decisions, so this can be optimised rather than taken off course unwittingly. This is why one commitment in the Charter is so important – to undertake unconscious bias training.

Various resources are available to assist with meeting this commitment, ranging from the helpful NZLS CLE Ltd webinar “Unconscious Bias in the Workplace”, which is available to view on the CLE website under the Free Recordings box.

Through better individual awareness of these issues, combined with more accountability and transparency in the workplace, it is hoped this will mitigate the paradox problem.

Conclusion

The “paradox of meritocracy” reminds us of the danger of complacency. The objectives cannot be achieved as an exercise of mere compliance and ticking the boxes. Rather, we all have to work to understand and actually reflect the values in our daily lives. By the very nature of the issues we are seeking to understand and correct for, this requires intentional effort on an ongoing basis.


Laura O’Gorman is a partner of Buddle Findlay. She is the representative of the Large Law Firms Group Ltd on the Law Society Council.

Last updated on the 4th May 2018