Implicit Bias in the Workplace – Just Because it isn’t Blatant, Does Not Mean it isn’t There

If the events of the past few months have shown us anything, it’s that Black Lives Matter, words matter, and actions must have consequences. Both spoken and in writing, the language we use has the power to inspire, unite, offend, and divide. Sometimes, the use of seemingly harmless words, or the absence of words altogether, can have an everlasting impact.

This week, I gave an hour-long presentation to HR personnel about the negative impacts of implicit bias in the workplace and how to spot and eliminate such bias. Even so, I’d be remiss to believe that implicit bias will no longer exist simply because I spoke to a group of folks for about an hour.

Implicit bias is arguably the most dangerous form of bias, as opposed to explicit bias, because it is our unconscious prejudice or preference. For example, you may conclude that someone is explicitly bias because his or her use of racial epithets, including terms like “wet back,” “yellow person,” “n****r,” “terrorist,” etc. However, implicit bias is much more subtle and can impact potential job applicants as well as employees.

For example, an employer may reject to even interview a candidate with a “black-sounding” name. Similarly, an employer may reject to interview a candidate based on his/her address – South Dallas versus Highland Park. An employer may reject to interview a candidate based on the school he or she went to – Texas Southern vs. UT. Additionally, an employer may scrutinize an applicant’s job experience and deduce that the candidate is either too young or too old for the vacant position. Those sorts of biases, while unspoken, are dangerous and have a proportionally larger impact on individuals belonging to protected groups.

Implicit bias can also be seen in spoken form. For example, an employer’s statement that an older worker is not technology savvy, and, therefore, a younger employee should be assigned to more complex projects, is a form of implicit bias. Additionally, requesting to “touch” an employee of color’s hair or asking an employee of color whether she intends to “fix” her hair is also a form of implicit bias.

Ultimately, implicit bias in the workplace or in the hiring process is a form of illegal discrimination. When a person of color, a female, or other employee or job applicant claims to have been discriminated against based on race, sex, national origin, religion, sexual orientation,  disability, or age, we can expect that most courts, if not all, will require convincing proof of discrimination. Given the most recent public outcry over police brutality and the sweeping impact of the Black Lives Matter and MeToo movements, perhaps judges, jurors, arbitrators, and mediators are more willing to see the blatant forms of discrimination for what they really are  – absolutely unacceptable.

When it comes to implicit bias, however, we can expect the battle to be twice as difficult. If your case does not have clear proof of discrimination like the notorious George Floyd execution or the Breonna Taylor slaughter, you must marshal witnesses and evidence to support your claim. Do not expect to prevail based on “he said, she said” testimony and claims. The truth of the matter is that jurors do not like to denounce people as discriminators without clear evidence they are guilty of discrimination.

There are forms of discrimination that do not require proof of intentional discrimination. By way of example, employers may utilize hiring criteria that have the effect of eliminating a significant percentage of black applicants, with a much lesser impact on white applicants. Such criteria include older criminal convictions such as drug charges. Similarly employers may use criteria that eliminates a significant number of older workers, with a much lesser impact on younger workers. For instance, an employer may require its employees to type a certain amount of words per minute, which may be out of the range of most older workers but well within the capabilities of younger workers.

Ultimately, implicit bias in the workplace is prohibited under the law. If your employer fails to protect you from discrimination, you can file a complaint of discrimination with the Texas Workforce Commission (“TWC”) or the Equal Employment Opportunity Commission (“EEOC”). Bear in mind that you must file your complaint with the TWC within 180 days from the day the discrimination took place. The 180-day filing deadline is extended to 300 days for a complaint filed with the EEOC.

In the end, I understand the difficulty of fighting your employer while also navigating state and federal laws prohibiting discrimination. At the Law Office of Rob Wiley, P.C., we can fight on your behalf and provide a sounding board for your discrimination claim. Everyone is entitled to  equality in the workplace. If you have been subjected to discrimination, blatant or implicit, do not hesitate to contact me or another Dallas Employment Lawyer to fight for you!

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