Confronting the microaggressor in us all.

While working on a sexual-assault case with multiple defendants who each had their own attorneys, Dana Cutler and her firm, Kansas City, Missouri-based James W. Tippin & Associates, had filed a number of unusual affirmative defenses.

One of the other defense counsels, a white male, was regularly commenting on and ridiculing Cutler’s approach in front of the rest of the defense team. After an expert deposition, he said something to the effect of, “Well Dana, with her unique approach, is probably why that depo did not go as anticipated or planned.”

As the only female and person of color on the defense side, Cutler suspected her approach would not have been questioned, at least not with as much snark, if she looked more like the other attorneys. She rounded on the man, who was about a foot taller than she, and said: “If you make another #$@@!&% comment about how I am defending my client, I will kick your @**. I mean it, and I can do it, trust and believe me. And while we are on the topic, this goes for all of you, am I clear?”

The rest of the defense team fell stone silent, and Cutler didn’t hear another word about her “unique” approach. Her client walked away from the case with a small settlement, while the defense attorney who had mocked her ended up with a sizable verdict against his client because he couldn’t use any of the “juicy plaintiff-damaging discovery I had obtained based on my defenses that were no longer in play once I settled,” she recalls.

Cutler, a past-president of The Missouri Bar association, had just experienced a typical microaggression often targeting attorneys of color, women, members of the LGBTQ+ community, and other groups who are “othered” by those in more historically dominant demographic or class groups. These microaggressions often stem from and are closely related to implicit or unconscious bias.

Cutler and her husband and colleague, Keith Cutler (the two are well-known as cohosts of the television show, Couples Court With the Cutlers) will be presenting a free ISBA CLE live web program on Dec. 10 as part of the ISBA’s Midyear Meeting. During the program, “Rooting Out Racial Bias,” the Cutlers will address microaggression, implicit bias, and cultural appropriation. (Information about the program, to be copresented by the ISBA and the Illinois Judges Association with support from the Northwest Suburban Bar Association and the Illinois Defense Counsel.)

What microaggression is and isn’t

Microaggressions are comments made to members of a marginalized community that are insulting and hurtful, Dana Cutler says. Keith Cutler adds that they are acts and statements that unintentionally degrade another person or lower their self-esteem. They break down into three subcategories: microassaults, microinsults, and microinvalidations.

Microassaults are comments made by someone who knows they’re saying something a little “off,” but they excuse the remarks by adding they were “just kidding,” Dana Cutler says. A white male might say to his Latinx coworker, “You’re moving a little slowly today; you must have had too many burritos last night,” she says. “‘I may have said something inappropriate,’ the person may acknowledge, ‘but it’s fun, ha-ha.’ The person knows it’s not quite right; or, they pass it off as good-natured humor when the reaction to it makes them think, ‘Uh oh.’”

“A microaggression may not have been intended to offend the person on the basis of their ethnicity, but it does,” Keith Cutler adds. “Once you start with the intent to offend someone, or to degrade or debase, you’re crossing the line from a microaggression to a true aggression. What separates microaggression from other forms is that it’s not intended to humiliate or degrade. It’s made thoughtlessly. You intend to say what you say, you just don’t intend to offend the other person.”

A microinsult is made by someone completely oblivious to what they’ve said and might even have intended it as a compliment. “But the recipient is not pleased,” Dana Cutler says. A white female might say to her Black female coworker, “That was quite a presentation you did yesterday. You’re so articulate.” Dana adds, “OK, this person has an advanced degree just like you. She works in the same department. How would it not be expected that she’d be articulate?”

Microinvalidations are more environmental, Dana says. “You go into the boardroom, and the portraits are all white males; or you go into the courtroom and there’s no diversity in representation, or the representation is all negative,” she says. She mentions the movie “Do the Right Thing,” in which a Black character who lives in a majority Black neighborhood questions the Italian-American owner of a pizzeria about why he only features pictures of celebrities of Italian descent on his wall.

Keith Cutler says microinvalidations also occur when someone is told their concerns are overblown and that they are overreacting. “If a coworker makes a sexist comment toward women, and as a woman you’re offended, and someone says, ‘That’s just Dave being Dave. It wasn’t that bad; you shouldn’t be concerned about it,’ it serves to invalidate your feelings about the situation,” he says. “It usually comes after the fact. The ‘aggressive’ situation has already occurred and then the invalidation comes when you are seeking redress: ‘Well, maybe you took it the wrong way. So-and-so was having a bad day.’”

It’s harder to say what microaggressions aren’t, Dana Cutler says. “What bothers me might not bother somebody else,” she says. For example, the comment to the Latinx male employee about eating too many burritos might not offend him, but it could offend someone else who overheard it.

Implicit and unconscious bias

All human beings have implicit or unconscious biases; therefore, everyone is potentially at risk of committing microaggressions, says Lea Gutierrez, chief diversity and inclusion officer with the Cook County State’s Attorney’s Office. Gutierrez says such bias still needs to be addressed at the individual and organizational level.

“This requires a lot of education and conversational dialogue—not lecturing, but a facilitated discussion that helps people understand who they are and all the different identities that make them and shape their lenses,” she says. “And how each lens is wonderful and valuable as a unique perspective that they bring. But at the same time, there are blind spots that are filtered out. Look, we are all human. We all have these different identities. At the same time, I may not know everything, and I may make mistakes. Understanding that will take away some of the defensiveness that happens.”

To root out implicit or unconscious bias at the organizational level, Gutierrez recommends critically examining practices and processes such as hiring and promotion; and how work assignments are parceled out, especially when they rely on personal discretion. Firms should collect data on these practices, be transparent with that data, and keep themselves accountable.

“I’m not advocating taking away any discretion. It’s necessary in terms of talent-management practices and service delivery,” she says. “But the more discretion that exists within a process, the more likely it allows for implicit bias to creep in. The whole thing about diversity, equity, and inclusion [(DEI)] is taking time to be intentional. We’re a very outcomes-oriented profession. We need to balance process and outcomes. They’re both very important. We can’t be so quick to ‘do, do, do’ to get the outcome. We need to put parameters around it so that there’s less chance for implicit or affinity bias to kick in and impact those results.”

Bias is not always expressed negatively, Gutierrez says. “There tends to be this default to thinking about negative biases—all the things we don’t like—and not understanding the many, many ‘positive’ biases we all have,” she says. “The warm, fuzzy feelings for people who are like us, who belong to the groups we belong to. Acting on these feelings often leads to less-than-ideal outcomes, if not outright disparities.” Gutierrez says bias is also not always based on social dynamics. We can be biased in how we process and express information (cognitive and information-processing bias). When these biases subconsciously affect our preferences, we allow for additional blind spots in our decision-making, she says.

“Microaggression” and bias terminology have come to the fore in light of recent racial unrest, Dana Cutler believes. “But marginalized communities have been talking about it forever,” she says. “In the past, it’s kind of fallen on deaf ears. Some people would say, ‘This isn’t good for a workplace; this doesn’t make me feel welcomed.’ And the response was like, ‘Oh, well.’”

But Dana says that’s changing. “People are really trying to do better,” she says. “Firms are beginning to notice that when Black female employees are leaving after five years, maybe that’s not the best return on their investment. People do want to do the right thing. As the old guard retires, there’s a different energy leading firms. These are people who value inclusivity and want to cultivate it. All of those factors come together.”

Acknowledging and combatting bias

To combast bias, Gutierrez says firms and law-related agencies should actively include diverse voices in decision-making. “I mean that in the broadest sense,” she says. “I’m talking about people who sit in different levels in the organization, in different roles. There’s a tendency to over-include attorneys and not think about how decisions impact other people in the organization. It’s not just about women, people of color, and LGBTQ+,” she says.

To be fully inclusive, this must involve open discussions without fear of retaliation, Gutierrez says. “We need to be fostering psychological safety and give agency to different folks to participate in the discussion,” she says. “It has to be OK for them to disagree, to challenge the status quo, to make a mistake. All of those things have to be there to benefit from having those diverse perspectives at the table.”

Keith Cutler says there’s a middle ground between being biased and completely unbiased. “When you tell someone they’re biased, they think of active hate,” he says. “They go to the far extreme and say, ‘I wasn’t intending to be offensive.’ No one wants to see themselves that way. That’s why this is being discussed more. More people are realizing when they may have said something insensitive and need to look at that.” Committing microaggressions and acting on biases doesn’t necessarily mean one is a racist, sexist, or homophobe, he says. “It’s more than just the two extremes. There’s a lot of areas in the middle that need addressing.”

Yet, while women, people of color, and other marginalized groups have made strides, they’re a long ways from achieving equality, Dana Cutler says. “The number of minority and female equity partners, the number of managing partners is low,” she says.

“I’m not sure it’s any different in an accounting firm, a doctor’s office, a real estate office, or a law firm,” Keith Cutler adds. “It plays out in all those contexts, as well as construction sites, and in the plumbing business. It manifests itself in all different types of businesses.”

Reacting to microaggressions and bias

Pick your battles, Dana Cutler says. “You only have so many fights in you. You can’t fight everything, every time,” she says. “It’ll kill you.”

One needs to quickly assess factors such as how old the “microaggressor” is and who they are in your workspace, Dana says. “Is this the senior-senior-senior partner?” she says. “How often are you going to encounter this person? If you confront them, are they going to understand what happened? You have to choose what hill you’re going to die on. Every hill isn’t worth dying on.”

For example, the white male defense counsel who mocked Dana’s deposition approach was worth confronting. But she had a different take on an “80-something white man” who had been assigned to her in the mid-1990s as an insurance defense client in a car accident case. “Frankly, when he came into the office, he was surprised to meet me,” she says. “He didn’t do a very good job of hiding it.” She said to him, “It’s really, really important for clients to be comfortable with their attorney. If there’s any reason you’re uncomfortable with me, I would rather give your file back to the company.”

The man read between the lines, understood what she was saying, and responded with a backhanded compliment. “He looked at me for what seemed like 20 minutes, and he said, ‘A negro woman doing insurance defense work is probably better than the average bear,’” Dana recalls. “I laughed to myself. He did get what I was saying. But there were a whole bunch of things to unwrap in his statement.”

Dana chose not to be confrontational under the circumstances. “Could I have called him a racist dog and said, ‘How dare you!’? Of course I could have,” she says. “But he was being—in his understanding—as polite as he could be. These situations require on-the-spot analysis. Sometimes, we have to show grace. This person is doing the very best he or she can. You can’t always just fly off the handle.”

But there are moments, Dana adds, when you should. “Sometimes, you have to stand up and say, ‘Stop it!’” she says. “I’ve had those situations where I’m like, ‘You know what, this is not going to work, and let me tell you why.’”

Keith Cutler agrees that one needs to look at the context and person who made the statement or took the action. “Some people just don’t know. They don’t know that you shouldn’t say certain things in certain situations, or that it could be taken multiple ways. But sometimes, the evaluation is pretty quick: You know the person, and you know they intended what they said,” he says. “Then it’s appropriate to take next steps, be it reporting to human resources, talking to a supervisor, or calling out that person at that moment.”

As a young Black attorney from a small firm representing Fortune 500 companies, Keith recalls microaggressions that clearly stemmed from implicit bias. “I had a number of ‘strikes’ against me,” he says. “I would go into court, and there would be a case like, Johnson vs. Ford Motor Company. The judge would just assume I represented the plaintiff.” The dialogue back-and-forth would be: “No, your honor, I represent the defendant.” “You represent the defendant?” “Yes, sir.”

Keith adds, “The judge wasn’t necessarily acting with bad intentions. The judge had a bias of who should be representing Ford Motor Company, and that person did not look like me.”

Gutierrez recommends addressing microaggressions when they occur, either in the moment or soon afterward. “There tends to be different views of what happened in a situation the longer you let it pass,” she says. “Microaggression is really a misnomer—it does not feel ‘micro’ to the person experiencing it. There’s a psychological toll. Having to address it and educate the other person exacerbates that psychological toll.”

Gutierrez agrees with the Cutlers that one can’t push back every time. “There’s a cost-benefit analysis,” she says. “How important is this relationship? Do you have the bandwidth at this time to address it? If not, it’s OK—especially if it’s not an important relationship or not one you have to maintain continuously. At the same time, if you do have the bandwidth, if this is an ongoing relationship, it’s more important to address the aggression in the moment.”

Third parties who overhear microaggressions should use any privilege they have and say something, Gutierrez says. “My positionality within my organization gives me a certain level of privilege,” she says. “If a member of the LGBT community is experiencing a microaggression right in front of me, I can use my privilege to speak up. But always be aware of oneself and one’s mental health when having these conversations.”

Checking your microaggressive instincts

Members of historically dominant groups who are confronted over microaggressions should avoid knee-jerk reactions, Keith Cutler says. Do not blurt out or say to yourself, “I’m not sexist. I’m not racist,” he advises. “No one wants to be portrayed in that light. Once you say that to yourself, you don’t listen to constructive criticism. The first step is to recognize that, while you’re not a bad person, maybe there is some room for improvement. Consider why you hadn’t thought of your remark as insensitive and learn why it was considered that way.”

That open-mindedness reflects what trial attorneys tell jury members all the time, Keith says. “We all have biases; we all have preconceived notions,” he says. “It doesn’t make us bad people. We’re all products of our experiences. We need to carry that premise over into the DEI realm. We have biases and may act and say things that reflect those biases, even if we’re unaware of them.”

Lawyers can join affinity bar associations to get different perspectives on race, sexual orientation, and the practice of law, Dana Cutler says. “If you don’t move out of your own circle, you can’t understand or learn,” she says, but it’s not a simple process even then. “People want a prescription, like, ‘If I do A + B = C, I won’t have these problems.’ That’s not how it works. It’s a learned behavior. It takes an affirmative action to surround yourself with people who may be different and think differently.”

“Finally, you’ve got to be open to hearing criticism,” she adds. “We need a paradigm shift where we’ve willing to hear each other, talk about it, and not just get pissed off and be insulted. To navigate this space, we must all be open to listening, and thinking about the validity of the other person’s point of view. Lawyers should be the first people to embrace that. Our whole training is, ‘We’ve got to look at the other side’s argument. It has value.’ We should be the ones doing this. It’s part of our DNA.”

Ed Finkel is an Evanston-based freelance writer.
edfinkel@edfinkel.com