By Robert G. Chadwick, Jr., Seltzer Chadwick Soefje & Ladik, PLLC.
Last week, two black men were arrested at a Philadelphia Starbucks allegedly for trespassing. In the aftermath of the arrests, accusations of racial profiling have brought unwanted protests and media attention to the coffee chain. In response, Starbucks CEO Kevin Johnson said he will order store managers to undergo training as to “unconscious bias.”
Although the training ordered by Mr. Johnson likely relates to customer service, prudence dictates that the training also encompass employment relations. Courts have long recognized that an employment practice or decision influenced by “unconscious bias” toward one or more protected groups is a form of unlawful employment discrimination. An employer who does not provide employee training to combat “unconscious bias” thus risks potential liability and defense costs under applicable employment discrimination statutes.
What Is “Unconscious Bias?”
Even if a person does not display overt bigotry or hatred toward a minority group, the person may still harbor assumptions about the group based on cultural generalizations or stereotypes. Often, these stereotypes are inaccurate and unfair, and therefore biased. The person may or may not be aware of the bias, but the bias exists nonetheless. A bias harbored by a person of which he or she is unaware is “unconscious bias.”
Significantly, “unconscious bias” is common even in persons who profess to be unbiased. As observed in the Harvard Business Review by Harvard University researcher Mahzarin Banaji:
Most of us believe that we are ethical and unbiased. We imagine we’re good decision makers, able to objectively size up a job candidate or a venture deal and reach a fair and rational conclusion that’s in our, and our organisation’s, best interests, but more than two decades of research confirms that, in reality, most of us fall woefully short of our inflated self-perception.
When Does “Unconscious Bias” Become Unlawful Discrimination?
“Unconscious bias” becomes unlawful discrimination when it (a) is tied to a protected characteristic, such as race, color, national origin, age, sex, disability or religion, and (b) influences an employment decision. Predictably, an employment decision is more susceptible to being tainted by “unconscious bias” when subjective criteria are involved. Under such circumstances, a stereotype may unwittingly bias how the decision-maker processes and interprets information and how other people are judged.
In The Id, The Ego, and Equal Protection Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 324-25 (1987), Charles R. Lawrence provided an example of unconscious racial bias at work in a hiring decision:
Thus, an individual may select a white job applicant over an equally qualified black and honestly believe that this decision was based on observed intangibles unrelated to race. The employer perceives the white candidate as ‘more articulate,’ ‘more collegial,’ ‘more thoughtful,’ or ‘more charismatic.’ He is unaware of the learned stereotype that influenced his decision. Moreover, he has probably also learned an explicit lesson of which he is very much aware: Good, law-abiding people do not judge others on the basis of race. Even the most thorough investigation of conscious motive will not uncover the race-based stereotype that has influenced his decision.
In The Content of Our Categories: A Cognitive Bias Approach to Discrimination & Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1188-90 (1995), Linda Hamilton Krieger provided another example:
Krieger cites the example of a Salvadoran who was the only nonwhite employee at his workplace. Although he made mistakes, so did the other employees. However, his supervisor uniformly reprimanded him for his mistakes and later declined to promote him and ultimately terminated him while overlooking the white employees’ mistakes. His supervisor also ignored his achievements or attributed them to others, while commending white employees for similar achievements. While the supervisor may have intentionally discriminated against the Salvadoran, he might also have treated him poorly because he viewed him through the lens of an uncomplimentary stereotype, making him less likely to notice the Salvadoran’s achievements relative to those of the white employees and more likely to treat his mistakes harshly.
How Do Employers Combat “Unconscious Bias?”
The use of objective criteria in employment decisions is a partial answer to “unconscious bias”, but subjectivity cannot always be avoided. The ultimate answer is training. In this regard, the goal of the training should be two-fold.
First, employees should not merely be told about “unconscious bias.” Remember, many employees will believe their decision-making is unbiased. Telling them otherwise may fall on deaf ears.
Instead, employees should be shown “unconscious bias.” Such a demonstration can be accomplished through employee testing. The results of testing can unsettling, but the first step toward combatting bias is to turn a hidden bias into a visible one. Once preconceived beliefs have been dispelled, the employees will be more receptive to training.
Second, employees should be provided the necessary information for combatting “unconscious bias” in decision-making. This information includes the fallacies behind certain stereotypes and the review of specific situations likely to arise in decision-making. Once employees know how to fight back these biases, they will be better informed in mitigating the legal risks present in any employment decision.