Tuesday

Is Unconscious Bias Negatively Affecting Your Workplace?

Thirty percent of Caucasians admit that they have a racial bias toward African-Americans. But, are those numbers accurate? Social scientists studying “unconscious bias” say that number is low. In fact, some studies have found that 88 percent of Caucasians have a pro-Caucasian or anti-African American unconscious bias.

Unconscious bias is the concept that individuals can have a bias at an unconscious level that influences decision-making in ways that the individual is unaware. In other words, individuals who have an unconscious bias make decisions based on stereotypes with no idea that they and their decisions are biased. Social scientists have empirically demonstrated that unconscious bias exists in our society. In fact, the bias begins as early as age three when we are taught to categorize the world around us. Categorization allows us to make sense of new information, but it also leads to stereotyping. That stereotyping results in discrimination when people rely on those preconceived notions in making employment decisions.

Marianne Bertand (Chicago Graduate School of Business professor) and Sendhil Mullainathan (MIT professor) conducted an experiment to determine if employers were discriminating against job applicants with African-American sounding names. Bertrand and Mullainathan sent out nearly 5,000 resumes to 1,300 job openings in Chicago and Boston. Every employer received four resumes: an average Caucasian applicant, an average African-American applicant, a highly skilled Caucasian applicant, and a highly skilled African-American applicant. The companies to which the resumes were sent stated that they were aggressively seeking diversity. Yet, the study found that applicants with Caucasian sounding names were 50 percent more likely to get an interview than applicants with African-American sounding names. They also found that lower skilled Caucasian applicants received more interviews then highly skilled African-American applicants. The study revealed that employers have an unconscious bias when they see an African-American sounding name which causes them to react negatively toward that applicant’s resume.

The most well known unconscious bias study is “Project Implicit.” Psychologists at Harvard, the University of Virginia, and the University of Washington developed Implicit Association Tests (“IAT”) to uncover an individual’s hidden stereotypes. The test requires subjects to rapidly classify words and images as good or bad while sorting images that are (depending on the bias in the question) African-American or Caucasian. Unconscious bias is exposed by how long it takes the subject to pair the words and images. Subjects who have an unconscious bias towards African-Americans will take longer to associate African-American images with good or positive words. Millions of people have taken the IAT. The IAT has found that there is widespread unconscious bias against African-American, even among individuals who believe that they have no racial bias.

The IAT has ignited a vigorous debate. And, the test has many critics. Richard Banks (Stanford Law Professor) criticizes the IAT claiming that “it is not clear that researchers have uncovered any evidence of unconscious racial bias that influences what happens in the world. The IAT may not measure real world unconscious racial bias at all. It may just measure awareness of cultural associations out in the world.” William von Hippel (University of South Wales) says that “we still do not really understand what [the IAT] reveals.” Banks’ and von Hippel’s criticisms of the IAT are consistent with those of other unconscious bias critics who argue that unconscious bias findings reveal nothing about how an individual will act. Critics say that people can consciously override their biases, but the research finds that implicit biases are a powerful predictor of how individuals actually behave. As Andy Poehlman (a Yale graduate student who has tracked more than 61 studies) explained, an unconscious bias “doesn’t control our behavior in a be-all and end-all kind of way, but it flavors our behavior in a pretty consistent way.”

Unconscious bias is increasingly being used in employment litigation to prove discrimination. Unconscious bias has been a central issue in Dukes v. Wal-Mart Stores, Inc., the largest class action discrimination lawsuit in history in which two million women are suing Wal-Mart for gender discrimination. The Court’s receptivity to unconscious bias arguments in the Home Depot class action and the FedEx class action resulted in those cases settling for huge amounts, $87.5 million and $53.5 million respectively. Unconscious bias is being raised in class actions against several other Fortune 500 companies such as Best Buy, Johnson & Johnson, Cargill, Merrill Lynch, General Electric, American Express, MetLife, and Morgan Stanley.

Employers also are addressing unconscious bias allegations in their dealings with the EEOC, the governmental agency that enforces the federal employment discrimination laws. The EEOC explains that intentional discrimination “includes not only racial animosity, but also conscious and unconscious stereotypes about the abilities, traits, or performance of individuals of certain racial groups.” The EEOC clearly warns employers to be attuned to the subtle and unconscious ways that race and color stereotypes and bias can negatively affect all aspects of an individual’s employment. The EEOC is focusing its enforcement efforts on eradicating unconscious bias. The agency even filed suit against Walgreens alleging that unconscious bias was influencing employment decisions at the drugstore chain.

There is considerable debate about whether and to what extent unconscious bias affects employment decisions. To date, employers appear to be handling the issue by claiming that unconscious bias does not exist. Perhaps, employers should learn from Wal-Mart, Home Depot, FedEx, and Walgreens (i.e., companies who failed in their arguments that unconscious bias does not exist) and instead, audit their processes to ensure that unconscious bias is not at work in their companies.

Shalanda Ballard is an employment defense attorney who has practiced in all facets of employment litigation. Ms. Ballard was named in the National Register's Who's Who and in Law & Politics Magazine as a Rising Star. She has spoken at continuing legal education conferences and employment law seminars. Ms. Ballard also writes an Employee Rights Blog at www.employeerightsblog.net.

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