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Unconscious Discrimination

 

“’Your unconscious made you do it.’

That’s the new accusation in some big, nationwide workplace discrimination cases that Minnesota employers and their lawyers are closely watching.

‘Unconscious bias’ is an element in two pending class-action lawsuits potentially involving millions of workers, one by women against Wal-Mart, and another by blacks against Walgreens.

It’s fundamental to an enforcement effort announced last month by the federal Equal Employment Opportunity Commission (EEOC) that focuses on filing ‘subtle’ discrimination lawsuits and educating employers. It’s called eradicating Racism and Colorism from Employment (E-RACE).

How can employees prove that prejudices lie deep in their boss’ unconscious? How can bosses disprove bias that is by definition invisible to themselves?

It’s an evolving tactic, according to several lawyers, whose opinions on unconscious bias range from junk science to an important breakthrough.

Also called implicit bias, the concept stems from both common sense and growing social science research that human beings make all kinds of assumptions about other people.

When those assumptions are unconscious and discriminatory, you’ve got a legal problem, said Joan Williams, an attorney at the Center for WorkLife Law in California who has done a lot of work on gender bias.

One example: When a female lawyer who worked full time was away from her desk, her colleagues assumed that she was in a meeting. When she started working part time and was away from her desk, her colleagues assumed she was at home with her child. And suddenly her job evaluations went bad, Williams said.

‘This is the face of discrimination today,’ Williams said.

The EEOC is using unconscious bias in more race discrimination challenges, said Assistant General Counsel Carolyn Wheeler in Washington. For example, in a lawsuit filed against Walgreens this month, the commission alleges that the pharmacy chain placed its black employees in poor stores or stores in black neighborhoods.

Like most class-action cases, you start with numbers to show that minority employees are disproportionately found in certain jobs or at certain sites, Wheeler said.

‘Just to say everybody has biases will not be that helpful,’ she said. ‘How you translate that into employment cases is a very different question, just now being explored by litigators, to see if this can help explain those numbers to courts and to juries.’

But arguing unconscious bias can turn into reverse discrimination, said Charles Feuss, an employment attorney at Ford & Harrison in Minneapolis who represents employers.

Take the Wal-Mart lawsuit in California, Feuss said, where 2 million female employees allege sex discrimination. The court allowed testimony that the company’s hiring process was prone to subjective decisions by far-flung managers, opening the door to unconscious bias.

That’s like accusing all the store managers of discrimination without having to prove anything about each of them, Feuss said.

‘If you can just say that the system in place is inherently biased, you can cobble together an eye-popping class action case,’ he said. ‘Employers need to take a hard look at their decision-making mechanisms, scrutinizing, “How can we make our decisions objective?”’

Williams, the California attorney, noted that any systems must take into account ‘leniency bias,’ because people are known to judge people like themselves more leniently and favorably than others.

In one EEOC study, for example, New York employers were more likely to hire white job applicants over black applicants - even though only the white applicants came with criminal records.

Williams also preferred the phrase ‘unexamined’ bias, she said, ‘because when you use the word “unconscious” people say, “How on earth can I be held accountable for something I’m not even conscious of?”’

In fact, employers can train employees to spot and overcome their previously unexamined biases, Williams said. ‘You can’t control those biases, but you can control whether or not they rule your behavior.’

Feuss added that if the EEOC’s goal is to get employers’ attention, it’s working.

‘Managers are saying “I don’t want to be the next Walgreens, or the next Wal-Mart,” ‘ he said.”


“Two lawsuits promote growing awareness of ‘unconscious bias’. Can an employer discriminate against a worker without being conscious of it? The federal courts will be called upon to find an answer to that question.” by H.J. Cummins. Star Tribune, March 29, 2007, p. D1 & D6

 

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