Getting Unconscious Bias into the Company’s Consciousness

Getting Unconscious Bias into the Company’s Consciousness


by


If you’re blonde, if you’re good-looking or if you’re a man who stands nearly 6 feet tall, lucky you. Financially, you may be doing better than the rest of us.

Here’s why: We make thousands of decisions every day. Many of these choices are informed by implicit, or unconscious, biases—that is, preconceived ideas we form over our lifetimes as a result of our past experiences.

By definition, we are unaware of our unconscious biases. But studies show that we often subconsciously hold these prejudicial opinions toward certain people and groups of people based on demographics such as gender, age and ethnicity. Even factors like a job candidate’s hometown or college alma mater may be sources of detrimental notions.

Such biases can affect income. For example, men taller than 5 foot 11 earn an average of $5,525 more per year than their shorter
counterparts, according to a Harvard University study. And a National Bureau of Economic Research study found that potential employers called back job applicants with stereotypically Caucasian names 50 percent more often than they did for people with stereotypically African-American names, even when their resumes were otherwise identical.

A Yale University study revealed that employers pay a 5 percent “beauty premium” to employees viewed as attractive. Other studies show that blondes earn 7 percent more money than brunettes and redheads do.

Unconscious Bias in Hiring

These unconscious biases, which can unintentionally affect hiring decisions in the workplace, can cause big problems. Unconscious bias in the hiring process—or even the appearance of that bias—puts employers at risk for getting sued for discrimination.

The Civil Rights Act of 1964 prohibits employers with at least 15 employees from intentional employment discrimination based on sex, race, color, national origin or religion. (State anti-discrimination laws usually apply to employers with even fewer employees.)

Most employers are well aware the law prohibits employees in these protected categories from being treated differently than other employees. What they may not know is that the law also includes disparate impact, which occurs when seemingly neutral rules or practices turn out to adversely affect protected groups, even when the employer didn’t intend that outcome.

The Equal Employment Opportunity Commission began targeting unconscious bias nearly 10 years ago. The Commission goes so far as to include “unconscious stereotypes about the abilities, traits or performance” of individuals in protected categories in its definition of intentional discrimination. Courts, recognizing there is no intent in unconscious bias, haven’t jumped on board, but that hasn’t stopped employees who sue their employers for discrimination from claiming that unconscious bias has led to disparate impact, and that the disparate impact has limited their workplace opportunities.

Unconscious bias lawsuits are on the rise, a fact that isn’t likely to change soon. Ongoing research about unconscious bias theory increasingly will encourage plaintiffs to use the disparate impact theory to bolster their discrimination cases.

Eliminating Unconscious Bias in the Workplace

Employers can, and should, make unconscious bias a part of the company’s consciousness. What you’re aware of, you can address. These steps will help to curb unconscious bias at work—and limit the business’s related legal liabilities:

  • Talk about it. Along with diversity training, provide managers and employees with training that helps them understand what unconscious bias is, acknowledge that we all have it and recognize how it can manifest in the workplace.
  • Educate managers about their own biases using the Harvard University Implicit Association Test, the best-known tool for testing one’s own unconscious bias. Research shows that, when people become aware of their unconscious biases, they can take steps to mitigate the impact of that bias on their organizational decision-making.
  • Use objective, fact-based hiring techniques, establishing objective criteria and clear, consistent interviewing and decision-making procedures. Structured interviews, in which all candidates are asked the same questions, reduce bias that may show up in more free-flowing interviews.
  • Keep hiring managers and supervisors accountable by periodically evaluating their hiring decisions and the employee performance interviews they conduct. These assessments will help you pinpoint places where unconscious bias is affecting hiring or employee management. Once these individuals have the right tools, they will be able to recognize biases and ensure that unfair or illegal motivations—even unconscious ones—do not impact hiring, job advancement and compensation decisions.

While it may be impossible to completely eliminate unconscious biases, taking the conscious measures outlined above can help minimize the effect of implicit prejudices in your workplace.

Written by

Jim Holland is managing partner at Fisher Phillips’ Kansas City, Missouri, office. He practices labor and employment law, exclusively representing management. (816) 842-8770 // jholland@fisherphillips.com // www.fisherphillips.com

Categories: Law

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