'Unconscious bias' emerging as a new kind of employment claim


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

The concept, also referred to as "implicit bias," is based not only on common sense, but on growing social-science research that humans make assumptions about other people.

For example, if a female full-time worker is away from her desk, colleagues may assume she is in a meeting. But if she's working part-time and away from her desk, they may assume she's at home with her child. Her job evaluations may suffer as a result.

The Equal Employment Opportunity Commission (EEOC) recently announced its intent to file "subtle" discrimination lawsuits. It's using unconscious bias in more race bias claims. For example, in the lawsuit filed against Walgreens, the EEOC alleges the pharmacy chain placed black employees in poor neighborhoods.

The EEOC also did a study showing that New York employers were more likely to hire white job applicants over black applicants, even though only the white applicants had criminal records. According to the commission, this demonstrates that people judge individuals like themselves more leniently than others.

Employers who can prove their hiring and promotion decisions are based on objective factors will have a better chance of defeating an unconscious bias claim.

The EEOC is urging companies to examine their hiring policies and to train managers to spot and overcome previously unexamined biases.

Mark Greene & Associates (MG&A)
Attorneys & Counselors at Law
Assinippi Village, Hanover, MA
www.MarkGreeneLaw.com
Mark@MarkGreeneLaw.com