Dealing with Unconscious Bias

by Employers Council Legal

Discrimination,  Featured,  Hot Topics

Unconscious or implicit bias can be a difficult concept. After all, how do we address biases in our employees of which they may not even be aware? While an employer may be able to identify explicit biases through investigations or surveys, or the complaints it receives, the battle against unconscious or implicit bias is more difficult to wage.

Employers Council attorneys have been focusing on issues involving unconscious bias for years, including at the 2016 Employment Law Update conference. In the field of employment law and human resources, such bias is usually demonstrated in one of four forms (although there are many others).

  1. Affinity, or the desire to work with those who are most like ourselves.
  2. Haloing or the Halo Effect, where a single trait is perceived as so overwhelmingly positive that it causes one to ignore negatives, such as performance deficiencies. Haloing can work vice-versa as well; i.e. we ignore positive aspects of an employee because of a single factor perceived as negative that controls our overall impressions of that person.
  3. Confirmation Bias, or the tendency to look only for either negative or positive factors that support an overall image that we have already crafted.
  4. Stereotypes and Perception, or the tendency to rely on stereotypical characteristics in evaluating a person or group, whether or not those stereotypes or our perceptions accord with the facts.

Although Starbucks has recently come under fire for actions taken by a Philadelphia-based manager towards two African-American men, many other companies have also been accused of and sued for unconscious bias in the recent past. Only the future will tell what result awaits Starbucks, but we may learn lessons from similar cases encountered by our attorneys in the past.

First, the best way to eliminate an unconscious bias is to make the holder of said bias conscious of it. In other words, transform the unconscious bias into a conscious bias.  This is best accomplished through training on unconscious or implicit bias and policies that specifically address bias in decision-making. Employers Council offers training on this complicated topic.

Second, plaintiffs and agencies will look to statistical data to corroborate whether a company or its managers may be acting on the basis of unconscious biases. Such data may look to the demographic composition of a company’s workforce as a whole, or look for patterns in discipline, hiring, promotion, or other employment actions. Based on the popularity of using statistical methods to determine whether unconscious bias has infiltrated an employer’s decision-making, companies should preemptively utilize disparate impact analyses and similar affirmative action¬† tools in order to assess the likelihood of a successful unconscious bias claim against them.

Next, employers may want to consider a host of other, smaller steps to eliminate or mitigate the impact of unconscious bias in their own decision-making. For example, consider the following items:

  • Institute objective criteria for job-related decision-making, e.g. hiring, firing, discipline, pay raises.
  • Screen documents submitted by applicants for employment to remove identifying information that could lead to stereotyping.
  • Secondary and even tertiary review of decision-making to lessen the impact of any unconscious bias that may be held by one or more of the line of decision-makers.
  • Surveys for current or separating employees to assess whether unconscious bias may have infiltrated your workplace.

For further information on training, disparate impact analyses, policies that are designed to combat unconscious bias, and surveys for current or separating employees, contact your Employers Council representative for options.

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