Federal Equal Employment Opportunity Commission Addresses Unconscious Workplace Bias

Article excerpt

Employers could be penalized for attitudes held only in their unconscious.

Unconscious workplace bias, more subtle than overt discrimination, is being tackled as part of a new initiative of the federal Equal Employment Opportunity Commission.

Employment law attorney Sam Fulkerson said there are steps companies can take to reduce the possibility that their policies and practices run afoul of such claims.

E-RACE, Eradicating Racism and Colorism from Employment, was launched by EEOC Chairman Naomi Earp in February.

Michelle Robertson, senior trial attorney for the EEOC's Oklahoma Area Office, said one of the objectives of the initiative is to look at less-obvious forms of discrimination, such as unconscious bias.

"It's found based on people making decisions based on stereotypes and other things like that, not necessarily with specific discriminatory intent," Robertson said. "But if they do rely upon an unconscious bias or stereotype, that can still be an illegal employment decision."

Robertson said the agency recognized that it needed to work hard at investigating three types of potential complaints.

"We don't have a specific guidance that's issued by the commission that defines unconscious bias," she said. "Rather, we have this initiative that recognizes that it exists and says we need to work hard at trying to resolve what might be another form of discrimination out there."

Unconscious bias is recognized as a form of illegal discrimination in a new section of the EEOC Compliance Manual that addresses issues of race and color, which took effect last year.

"Whether it's done consciously or unconsciously, if a decision is still made upon a protected category - someone's race, religion, national origin, gender, disability or age, that's going to be a problem for that employer," Robertson said.

Robertson said race-related discrimination claims are the most frequently filed with EEOC, accounting for 36 percent of claims in fiscal year 2006, 35.5 percent in 2005 and 34.9 percent in FY 04.

Fulkerson, with McAfee and Taft, said social science research demonstrates that there are parts of the brain that store information people act upon unconsciously, including issues of race, gender and the like.

"Basically, we are, maybe, biologically hardwired to be more favorably inclined toward people who are like us," he said. "We are also hardwired, therefore, to be less favorably inclined toward people who aren't like us."

This response is borne out by social-science tests where African- Americans and Caucasians are shown a series of words and faces, which they must match very quickly. …

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