In an ideal world, an employer would evaluate candidates based solely on objective, measurable criteria without consideration of any matter not related to job performance. In reality, many other factors come into play – including biases that the hiring manager is wholly unaware he or she harbors.
Although these unconscious biases are unintentional, they are abundant in the workplace – often targeting a broad range of characteristics. For instance, employers pay a 5 percent “beauty premium” to employees viewed as attractive, according to a study by Yale University. In addition, a Harvard University study revealed that men taller than 5’11” earn an average of $5,525 more per year than their shorter counterparts.
Names and accents also have an impact. After distributing 5,000 resumes to 1,250 employers, the National Bureau of Economic Research found that job candidates with stereotypically Caucasian names received 50 percent more call backs than those with stereotypically African-American names – even though the resumes were otherwise identical. In addition, a 2012 study revealed that science professors at research universities rated male applicants more favorably and offered a higher starting salary than the female candidates for a managerial position. Another study shows that applicants with certain accents are often deemed as more qualified for a job.
But just because unconscious biases are just that – unconscious – does it mean employers are off the hook from a legal perspective? Not necessarily. The infiuence of unconscious biases in employment can be huge – from recruiting efforts and the interview process, to the final hiring decision. Ultimately, this can open the door to costly discrimination claims.
A Legal Perspective on Unconscious Bias
Under Title VII of the Civil Rights Act of 1964, employers with at least 15 employees are prohibited from discrimination based on sex, race, color, national origin and/or religion in every aspect of employment, including during the hiring process. Although it’s generally associated only with intentional discrimination (or disparate treatment), the law also includes disparate impact – seemingly neutral practices that adversely affect protected groups, despite a lack of ill intent.
According to the Equal Employment Opportunity Commission (EEOC), intentional discrimination extends to decision making based on “unconscious stereotypes about the abilities, traits or performance” of those in protected categories. Because subconscious bias is the antithesis of intent, courts have been reluctant to adopt the EEOC’s position. However, plaintiffs bringing discrimination claims based on unconscious bias often rely on the disparate impact theory, arguing that unconscious bias results in diminished opportunities for protected groups such as women and people of color.
In a 1988 ruling, the U.S. Supreme Court recognized that an employer’s practice of subjective evaluations for promotion opportunities, even if not intentionally biased, could give rise to a disparate impact discrimination claim. More recently, the Iowa Supreme Court recognized the relevance of implicit bias expert testimony in a disparate impact claim brought by African-American job applicants who weren’t hired for state positions. Plaintiffs still must prove, however, that the bias – whether conscious or unconscious – was the cause of the alleged discrimination.
Combatting Unconscious Bias in the Workplace
Despite the obstacles that plaintiffs face, lawsuits based on unconscious bias have been on the rise in recent years, likely due in no small part to the highly publicized national debate on unconscious racial bias. As the lawsuits multiply and research on unconscious bias theory develops, so too will plaintiffs’ strategies for incorporating the theory in discrimination cases. As such, employers will need to deal head on with unconscious bias in the workplace.
Fortunately, the research on unconscious bias also finds that once people are made aware of potential biases, they can consciously intervene to prevent those biases from impacting their decision making. For that reason, employers should take steps to combat unconscious bias by:
- Raising managers’ awareness of their implicit biases through surveys and tests such as the Harvard University’s Implicit Association Test.
- Engaging a human resource diversity expert for manager and employee training.
- Establishing objective criteria and clear, consistent procedures for use by managers when making all employment-related decisions (e.g., removal of identifying characteristics from job applications, using the same set of interview questions for all candidates).
- Recruiting from many different sources to ensure an appropriately diverse applicant pool.
- Periodically auditing employment practices and procedures for disparate impact on particular groups.
Although it’s difficult to eliminate unconscious biases entirely, taking these proactive measures can help employers uncover and minimize the impact of any biases that may be looming in the workplace. William Blackie
