Are you sure?

Being asked this specific question is what overwhelmingly characterizes my experience in corporate law in South Africa. Ironically, I began to hear this question more the further I progressed in my professional career as opposed to earlier when I was a legitimately unsure and somewhat fresh-faced candidate attorney. The more skills and experience I acquired the more I was asked “are you sure?” This seems superficially logical, higher stakes and greater responsibility certainly call for greater caution and self-reflection, but there were certain aspects of the context in which I was asked the question that betrayed its neutrality.

The first was that (white) junior colleagues and peers in different departments asked me this question often. The second was that, while the law is far from an exact science, the context in which I was asked this question was often odd. In the context of the corporate, mergers and acquisitions department where I plied my trade the Companies Act is our bible so legal certainty is more readily attainable than in other areas of law where the scope for interpretation remains inherently wider and more routinely influenced by context. In other words, when Paul from tax asked if I was sure it was in response to me literally quoting a section of the Companies Act out to him verbatim. Finally, I rarely, if ever, heard this question being posed to white and / or male colleagues and trust me, having survived some fairly toxic interactions, I was listening.

I keenly remember a period where my former line manager was on leave and a junior colleague insisted we call him to confirm my interpretation of a provision of the Act. By this point, although no one knew yet, I had been awarded a scholarship to undertake a Masters degree at Harvard Law School. I rarely choose to disclose where I did my Masters as reactions vary and, TBH, there is no way of saying that without sounding like a massive douchebag. Nonetheless, it is important context here because I finally had a modicum of professional self-esteem I hadn’t experienced since my first 6 months of articles where I was lucky enough to be allocated to an affirming principal who, if he was ever unsure of my abilities, certainly allowed me to think otherwise. During the call, I barely spoke, my junior colleague explained the situation to my manager who then proceeded to articulate the same interpretation I had. I remember sitting silently on the call as she mumbled “that’s what Alex said” before hanging up. But why hadn’t I firmly indicated that I didn’t think the call was necessary, and worse, why was I so relieved? Hadn’t I been sure?

Eventually, as the time for my departure to Boston drew closer I formally resigned and my final day of work arrived. It was a Friday, after 6pm and I was anxious to close a cross-border transaction I had been negotiating for months. I had been on the phone with both parties all day seeking consensus on outstanding contractual points and, having finally reached an acceptable position on the last point of contention, I decided to hastily seek out some advice on how to word the clause before sending out the final contract for signature. I approached a friendly senior Director I had worked with well and often to act as a sounding board for my proposed solution. To my surprise he had a visceral negative reaction, he stated firmly that we never adopted the position I was proposing in our contracts and that something had clearly gone terribly wrong. 

Not only was I caught off-guard I didn’t have time to debate, so I explained that the parties were happy with the position after months of negotiation, they were aware of the legal consequences flowing therefrom and would he please PLEASE just give me his thoughts on the wording. He reluctantly told me that the wording was fine and I finalised and dispatched the contract with some significant residual anxiety given my earlier encounter with my well-respected senior colleague. An hour or so later I had packed up all my personal belongings and swung past his office to say my goodbyes. I was still feeling humiliated, but it was my last day and we had always had a good rapport.

A more junior director was inside chatting with him when I poked my head in the door and sheepishly said that I was off. Picking up our debate where we (he?) had left off, the senior director exhorted him to agree that the clause I had inserted was against our departmental tradition and insisted he explain to me why, “tell her that we never include that in our contracts!”. The junior director briefly considered and then asked a simple question, “are we representing the buyer or the seller?” Its relevance hadn’t occurred to me earlier. “The buyer”. The senior director’s eyes bulged, “the buyer, oh, ohhhhhh, oh, well then, BLOODY GOOD JOB THEN!!”

Both directors heartily congratulated me for securing such an impressive concession from the other party and as I set off down the hall I heard the senior director say “I probably should have asked that first.” I could leave with my head held high. I was seemingly ready to embark on the next phase of my career, and perhaps I had conquered my first. I was a competent lawyer and neither I nor anyone else had cause to believe otherwise. Yet I did feel otherwise. How could I not when I was constantly unconsciously internalizing my colleagues’ doubts about my abilities and judgment. They wanted to know if I was sure and, well, was I?

It’s important to emphasise here that it is absolutely essential to interrogate the advice of any legal professional and it is necessary for lawyers to continuously engage in rigorous professional debate around any proposed course of action. I am confident that I know when to revert and seek advice and I am firmly committed to canvassing alternative opinions. This was not my experience. In these instances, and others, the legal interpretations and solutions I offered were mundane. I would not have articulated them without a disclaimer acknowledging otherwise if they were not. While the responses I got from my colleagues were seemingly based on the assumption that I was unlikely to have correctly grasped even the most basic legal principles. I have no doubt that these were displays of subconscious bias rather than any explicit attempt to undermine me, but the psychological effects are unfortunately the same. I would consistently go home feeling confused, demotivated and deflated without really understanding why.

“I have no doubt that these were displays of subconscious bias rather than any explicit attempt to undermine me, but the psychological effects are unfortunately the same.”

In an article written by attorney and former Constitutional Court Clerk Lwando Xaso she talks about the pitfalls of “stereotype threat”, a studied phenomenon that identifies a correlation between poor professional performance and concerns that, as a member of a certain identifiable group, your performance will confirm pre-existing negative stereotypes about that group. As Xaso puts it, black women, “not only deal with the fear they will personally do poorly or be perceived as not as smart as their white counterparts…[t]hey also deal with the stress that their poor performance would reflect badly on all black women. This is an onerous burden to bear which manifests itself in physical and mental health issues.”[1]

South African activist and co-host of ‘The Cheeky natives’ podcast Letlhogonolo Mokgoroane once made reference to an amazing quote by Alice Walker speaking on Winnie Madikizela-Mandela, “a person’s work is her only signature”. I mention it here because I truly do aspire to be excellent. I have no interest in people pussy-footing around me nor giving me direct and constructive criticism (although I will absolutely later cry in the shower). I won’t always get it right but I have always endeavored to be a dedicated employee and team member. Always accountable, reliable, diligent and ready and willing to do my fair share of any task. That is why stereotype threat is such a concern. If my work is my only signature does the stress of the stereotype threat and the pressure to blaze a path for all the black women behind me mean that the hand holding the pen is somewhat shaky? When I put my pen to paper and I am asked if I am sure, am I able to confidently press down and sign or will I hesitate and ultimately make an error?

In the riddle that is the choppy corporate context wrapped in the mystery of a complicated country with an appalling history there is no shame in acknowledging that you are both smart and capable and that you may very well not have had the opportunity to work in a certain organisation were it not for the compelling force of affirmative action. Black women still need legislative help to pry open the (back)door of most South African companies regardless of their qualifications, skills, and experience. But a foot in the door isn’t enough, particularly when there are so many impediments to optimal performance. Professional support is vital to the ability of black women to make the most of the scarce opportunities they’re afforded, both for their own benefit and that of their employer’s. This requires their colleagues to reflect, internalize, and if necessary, take active steps to counter their own internal cognitive biases to ensure that they aren’t subconsciously expressing doubts that may undermine the performance of their co-workers. But will they? I’m not sure.

Alex is a Johannesburg based human rights attorney and corporate legal advisor. Your friendly neighbourhood civil servant. Mom, feminist, 2020 Atlantic Fellow, Drag Race addict.

[1] Lwando Xaso ‘Black Women Lawyers and the stereotype stress threat’. Available at:

 http://www.thejournalist.org.za/spotlight/black-women-lawyers-and-the-stereotype-stress-threat