Diversity and inclusion

The case against video interviews for training contracts and pupillage

Law PhD student Elijah Granet makes the case for audio interviews to support diversity and inclusion in legal sector recruitment.

Person at home having an interview on the phone

The COVID-19 crisis has prompted a shift to remote working in nearly every aspect of the legal business, ushering in online court hearings and the witnessing of wills by video. Training contract and pupillage interviews are no exception; from March 2020 on, virtually all have been done remotely, mainly on video-conferencing platforms such as Zoom.

Video interviews can be an obstacle to diversity and inclusion. Instead, almost all interviews should be made by telephone or audio conference, except where accessibility requires visual contact (such as where a deaf individual requires a sign language interpreter or wishes to lipread). The reason is simple: the information conveyed by looking at a candidate should have no place in the hiring process.

Most visual inferences are wrong and sometimes discriminatory

By the nature of the legal profession, many lawyers presume to be brilliant judges of character. This is unfortunately not true: as human beings, lawyers suffer from the same cognitive and cultural biases as everyone else.

Facial expressions certainly convey meaning, but our interpretations of them (despite the best efforts of governments, courts, and companies) are often wrong. This is heightened in certain circumstances, such as when a panel of lawyers interviews someone from a group underrepresented in the legal profession – for example, someone on the autistic spectrum, or someone with a different cultural background.

The discriminatory inferences that lawyers are at risk of making have been well documented by the Judicial College’s Equal Treatment Bench Book, which cautions judges against making virtually every type of common inference about a witness.

For example, it notes that an autistic person’s “body language and non-verbal communication may come across as aggressive”, while “being very restless, fidgety, breathing heavily and sweating” can easily be a sign of an undisclosed disability. Equally, eye contact’s “meaning and appropriateness... varies from culture to culture”, rendering it a poor indicator of any information about a witness (or job candidate).

The information conveyed by seeing a candidate’s face and upper body has no place in interviews. It is at best, misleading and flawed, and at worst, a conduit for discrimination. There is very little useful information an interviewer can glean from observing the physical reactions of their interviewee.

Unconscious bias

It is well known that, as a consequence of societal and institutional factors, interviews and hiring often express a systemic and unconscious bias against candidates from underrepresented groups, for example on the basis of gender and/or race. Even the most well-meaning firm or chambers is not immune to these factors, because, by definition, they are part of the same system which outputs bias societally.

Many chambers and firms recognise this, and seek to remove identifying data, such as name, gender, photographs etc, from the paper-sifting rounds of recruitment. Yet, an interview with a visual component undoes all this good work by presenting opportunities for a panel’s unconscious bias to seep in.

Audio interviews

Audio interviews would function like screens in orchestral hiring, allowing the panel to focus on the candidate’s performance, rather than on irrelevant (and illegal) factors, like a candidate’s appearance, gender, ethnicity or visible disability. What useful (and legally usable) information is conveyed by seeing a candidate?

This is not an argument for completely blind hiring, but for ensuring that the interview (which is only one component of the recruitment process) is, to the greatest extent possible, measuring only the candidate’s performance in the interview (rather than the bias of the interviewers).

There is certainly a place for firms to take a candidate’s characteristics into account, in order to promote diversity and equality; however, that place is when making a hiring decision, rather than during the hastily taken notes after an interview. ‘Blind’ interviews would have no impact whatsoever on this process (nor on mandated equality and diversity filings), because candidates would still be free to disclose gender identity, ethnicity, etc in the appropriate part of their written application and accompanying equality and diversity monitoring form. Thus, race- or gender-conscious inclusivity efforts can go ahead without any change.

However, by removing visual input from the interviewer’s limited in situ observations, firms can minimise the entry of unconscious bias into the subjective evaluation of a candidate’s performance. Given that – according to research by Nuffield College, Oxford’s Centre for Social Integration – candidates from ethnic minorities face serious and substantial discrimination at the hands of potential employers, removing visual cues from the interview environment is a sensible, affirmative step towards reducing this.

Zooming in on class

The problems with visual interviewing apply to in-person as well as virtual hiring. However, there is a specific inclusivity problem arising from remote video interviews (which applies just as much to remote hearings): one’s ability to participate smoothly in a video conference correlates with one’s class and circumstances.

A video interview requires a great deal of bandwidth, which may be geographically (for areas with poor broadband coverage) or financially unachievable. The result may be that candidates from wealthier backgrounds manifest to interviewers as smooth, realistic HD pictures, whereas poorer candidates may appear as pixelated, freezing blobs.

Purely audio interviews require far less bandwidth, and telephone interviews require none. Well-heeled candidates will likely also be able to obtain a quiet room with an appropriate backdrop, own a device with a good webcam and microphone, and perhaps purchase lighting and video accessories to improve their presentation.

On the other hand, there will be many less well-off candidates who live in cramped shared accommodation, for whom a video interview will involve holding a phone at an uncomfortable angle. These problems are even more acute for candidates who, for example, are carers, or live in countries where bandwidth access is severely limited.

The time has come for audio-only interviewing

There is virtually no information gleaned from seeing a candidate over video conference which can ethically (or, indeed, legally) be used to determine their performance in interviews.

Visual contact, particularly over remote platforms where one’s presentation is a function of one’s ability to pay for bandwidth and equipment, can only introduce opportunities for unconscious bias and mistaken inferences. The time has come for audio-only interviewing to be the default in legal hiring.

Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.

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