Human beings receive approximately 11 million pieces of information per second; yet we can only consciously process about 40 pieces during that time. It’s no surprise, then, that much of the information we receive is assimilated unconsciously. But assumptions about others can affect employers’ treatment of their staff and have serious legal implications.

Research indicates that we utilise observed criteria – such as skin colour, gender, and weight – to label people. The process of using visual/behavioural clues to make decisions about other people is thought to be an instinctive evolutionary trait, developed to allow our ancient predecessors to more easily spot threats and protect themselves. Whilst categorising people on superficial criteria allows our brain to take a shortcut, it has the grave disadvantage of creating an environment in which we can project assumptions onto people who fall into one ‘group’ or another. Even if a person doesn’t consciously believe in stereotypes, their actions can be governed by them if this kind of behaviour goes unchecked.

Awareness of unconscious – or implicit – bias has grown in recent years.  In May 2018, Starbucks closed over 8,000 cafes across the US for unconscious bias training after a manager of a Philadelphia store called the police to deal with two black men who hadn’t made a purchase, but who were innocently waiting for a friend.  And in November 2018 rapper Jay-Z persuaded an American court to put arbitration proceedings on hold because the lack of African American arbitrators left black litigants at risk of unconscious bias.

Unconscious bias can be hard to recognise or acknowledge, particularly if these biases are reinforced by family, friends, or even the media. However, where they affect decision-making in the workplace, they can result in unfair treatment and, potentially, legal disputes. Under the Equality Act, employers are prohibited from discriminating against employees (or prospective employees) because of ‘protected characteristics’ which include – but are not limited to – age, race, disability, sexual orientation or gender. The law does not differentiate between unconscious or conscious bias: discrimination is discrimination, whether it is intentional or not.

Yet we regularly see clients who believe they have been treated unfairly because of an unthinking reaction to a protected characteristic. A common example is the pregnant woman or new mother returning from maternity leave who notices that she is no longer being given work that necessitates travel; whilst her employer might have re-assigned this work unthinkingly, or even out of concern for her wellbeing, an assumption has still been made and the employee has been treated differently as a result. Similarly, some ethnic minority and female professionals report others assuming that they are less well-qualified, senior or knowledgeable than is actually the case.  Many senior female executives feel that assumptions that women are gentle and kind mean they can’t win: in some working environments if women aren’t assertive they are criticised for failing to show leadership – yet if they are, they can find themselves accused of aggression in a way that male leaders would not.

As technology expands it might be thought that artificial intelligence would eliminate some of the implicit biases that creep in to human decision making.  For example, automated recruitment decisions should not be based on assumptions tied to an applicant’s gender, sexual orientation or race (for example).  However, it is now widely acknowledged that algorithms can also be biased: Amazon’s attempt to build an algorithm to identify the best job candidates reportedly ended in failure when the algorithm discriminated against female applicants.

Types of Unconscious Bias

Unconscious bias can take different forms. The most common include:

• Confirmation bias. When a person automatically focuses on – and searches for – information that will confirm their preconceptions (whether good or bad). This means that they tend towards selective observation, rather than looking at the whole picture.
• Affinity bias. When an employer instinctively prefers an employee because they share characteristics – they went to the same school, for example, or look similar (same age, race, etc.). This can lead to a narrow pool of people being hired and promoted, which often results in reduced creativity and diversity of thinking in the organisation.
• Perception bias. When assumptions are formed about particular groups – usually conforming to unhelpful stereotypes – and the person finds it hard to treat a member of that group fairly and objectively.
• Halo/horn effect. The names given to contrasting (but similar) forms of bias: when one particular quality is focused on and this skews the person’s perception of the other person completely, meaning that they overlook other pertinent information. For example: if an employer is very impressed by how good a member of staff is at public speaking, and then assumes that the employee must have great communication skills (ignoring any other evidence to the contrary), this is the ‘halo effect’. The opposite reaction (being fixated on a negative element) is the ‘horn’ effect.

How to Reduce Unconscious Bias: Advice for Employers

Unconscious bias is, by definition, not deliberate, and most employers want to treat individuals fairly.  Additionally, as there is no cap on the compensation available for discrimination claims, mistakes in this area are potentially very costly.  Below are some steps employers can take to improve their approach:

1. Review process and make challenges. Review processes within the employment life-cycle and assess these for hidden bias. In addition, get into a habit of asking yourself: ‘Why did I react this way? Why did I form that judgment?’. Encourage all staff to challenge thought processes and decisions in this way.
2. Focus on language and culture. Sweeping statements can seep into all work environments – and we might not even be aware of them. Take time to review the language used by senior members of the organisation, noting any generalisations, and think about changes that could be made to enhance the wider workplace culture.
3. Build in countermeasures. Ensure that all staff have undergone unconscious bias training; make sure any recruitment processes involve a diverse panel; and consider psychometric assessments during hiring/promotion.
4. Encourage diversity at senior levels. Affinity bias still occurs in some organisations, meaning that important decisions are repeatedly made by a small circle of very similar people – which can impact on other (often minority) groups within the organisation, and hinder productivity and innovation. Encouraging under-represented groups to apply for promotions/high-level jobs and increasing diversity generally will negate this risk.
5. Think about each employee as an individual. This may seem obvious, but it’s essential.

If you require advice on tackling unconscious bias within your organisation, Bellevue Law’s experienced employment lawyers are here to help. Get in touch today to organise a no-obligation discussion with our expert team.

Disclaimer: this material is a general overview only, and is not intended to provide legal advice.