Labor & Employment Law Update

Bias, and particularly unconscious bias, is tricky. It is present in the most well intentioned of individuals and can be challenging to identify and therefore manage. However, just because it is challenging to identify does not make it impossible, and it is important to fight. Identifying areas for potential bias in hiring and the employment relationship will not only greatly increase your candidate pool and support retention but will also reduce your legal exposure.

In order to fight it we need to define it. Bias is defined as a particular tendency, trend, inclination, feeling, or opinion, especially one that is preconceived or unreasoned. There are two types of biases: conscious bias (also known as explicit bias), and unconscious bias (also known as implicit bias). Unconscious biases develop at an early age, emerge during middle childhood, and appear to develop across childhood. Unconscious bias is the trickiest to identify but also the easiest to combat.

So who has it? In order to answer that question, we need to destroy the myth that only certain people are biased. Everyone has bias. It does not matter if you are liberal or conservative, young or old -- we all have bias. Our unconscious bias impacts our feelings towards everything we do and say. It even shapes our thoughts towards gender roles and preferences for graduates of our alma maters.

This impact has real world effects on behavior and if left alone, can quickly turn into discrimination which leads to a decrease in morale, and an increase in turnover and litigation. So what are some real world workplace examples? The first example is one you likely have heard. One of the most well-known studies on bias was conducted by Bertrand & Mullainathan in 2004. In this study, fictitious resumes with White and African-American sounding names were sent to answer help wanted ads. The study found that resumes with white sounding names received 50% more callbacks for interviews then resumes with African-American sounding names. This was the result of both unconscious and conscious bias, both of which can be mitigated by policy changes.

Did you ever interview a person and have a gut feeling about them? Did you think they would just fit into the organization’s culture and therefore you hired them? Stop and ask why. Were they truly better than the other candidates, or did you have an affinity to them because they looked and talked like you? Affinity bias is a subset of unconscious bias and is often mistaken as “intuition,” or a “gut feeling.” It is the social categorization which occurs as a way to decipher friend from foe and bypasses logical thinking. In essence, it is our biological instinct to prefer those who are similar to us and often results in hiring people who look and act like we do. It is an instinct that once recognized can be overcome with changes in our hiring processes.

When biases are allowed to go unchecked in the workplace, they manifest into discrimination litigation that quickly consumes an organization’s time and budget. Engaging in strategies that mitigate biases allow for a more inclusive culture and less litigious aftermath. Although employers cannot eradicate unconscious bias, they can identify it and minimize its presence and impact in the workplace by conducting awareness training, identifying the type of bias most likely to occur, and then developing policies to keep unconscious bias in check.

Some strategies include implementing policies and procedures regarding:

• Standardized interview questions
• Removing identifying name/race information from initial paper/resume screen
• Having HR review discipline and performance evaluations
• Cross Supervise – Different perspectives!
• Making a conscious effort to include all parties at the table
• Creating a Diversity Committee
• Conducting climate surveys
• Conducting exit interviews

There are more than 150 identified unconscious biases that impact our decisions in the workplace and effect who we hire, how we manage and even who we fire. While combating unconscious bias may sound overwhelming, unconscious biases are malleable and once identified, employers can take steps to minimize their impact. Each step taken reduces our liability and creates a culture instead where inclusion is Everything Everywhere All at Once.