By: Allison Gloss
The term “implicit bias” refers to attitudes or stereotypes that adversely affect our behavior in an unconscious way. If left unchecked, these implicit biases can become uncontrollable. This includes the harmful stereotypes that White people learn to assign to the BIPOC (Black, Indigenous, and People of Color) community. Because implicit bias feeds into systems like employment, some social psychologists believe that these unconscious attitudes can actually predict behavior.[1] They assert that peoples’ unconscious support of certain stereotypes results in discriminatory behaviors based on unintentional preferences and biased decision making.[2] Implicit biases are prevalent in all aspects of daily life. They can be especially harmful in the workplace and ensuing employment law litigation.
Companies spend millions of dollars on anti-bias training each year in order to combat the implicit bias issue and promote a more inclusive workplace. Unconscious bias training helps individuals recognize, acknowledge, and therefore minimize the potential biases they might unknowingly have.[3] While implicit biases may be deeply ingrained, it’s important to keep these biases from shaping outcomes in the workplace. Bias plays out in the workplace in four distinct ways: (1) some groups have to prove their worth more than others; (2) a narrower range of behaviors are accepted from some groups than from others; (3) women with children see their commitment and competence questioned or face disapproval for being too career-focused; and (4) disadvantaged groups find themselves pitted against one another because of differing strategies for assimilating–or refusing to do so. Besides unconscious bias training, companies can also take certain steps to combat bias: insist on diversifying their applicant pool during recruiting, demanding accountability from leadership, and structuring interviews with skills-based questioning.
For many employment law practitioners, the theory of implicit bias raises complex questions when applied to traditional legal standards. Due to the difficulty of proving a causal link between the employer’s conduct and discrimination action, the theory has encountered ambivalent reception in the judiciary.[4] This link is closely tied to the requirement in Title VII disparate impact cases that plaintiffs identify a specific employment practice causing the disparate impact based on a protected category.[5] While the courts have mixed reception of implicit bias theory, the US Equal Employment Opportunity Commission (“EEOC”) maintains that intentional discrimination occurs “when an employment decision is affected by the person’s race…includ[ing] not only racial animosity, but also conscious or unconscious stereotypes about the abilities, traits, or performance of individuals of certain racial groups.”[6]
Implicit bias operates at a subconscious level, making it difficult (but not impossible) to counterbalance. The first step in addressing implicit bias is for individuals to first gain an awareness of their own biases. Racial discrimination in the workplace has been an ongoing issue in the United States for far too long. There is no small or simple answer to fixing hundreds of years of oppression and discrimination. Organizational change is crucial however, and at the very least, companies across the nation should be implementing implicit bias training, restructuring hiring policies, and holding executives accountable for implicit biases and racist behavior in the workplace.
[1] Camille A. Olson, Implicit Bias Theory in Employment Litigation, 63 Prac. Law. 37 (October 2017)
[2] Id.
[3] Id.
[4] Id.
[5] Title VII of The Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Sec. 703(k)(1)(A) and (B), 42 U.S.C. 200e-2(k)(1)(A) and (B).
[6] Questions and Answers About Race and Color Discrimination in Employment, The U.S. Equal Employment Opportunity Commission (May 16, 2006), https://www.eeoc.gov/policy/docs/qanda_race_color.html.
Allison (she/her) is currently a 3L at Arizona State University’s Sandra Day O’Connor College of Law. Following graduation, she plans to practice as a zoning and land use attorney in the Phoenix area. In this role, Allison is passionate about advocating the effects that zoning laws have on those experiencing homelessness. She hopes to assist in expanding the number of beds in homeless shelters to allow more places of refuge during the extreme heat of the summer months. Her personal interests include traveling, music festivals, skiing, and searching for the best happy hour spots in town.
Law Journal for Social Justice 