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Today’s Business: Implicit bias — a new force facing employers

Aug. 6, 2022

Robert B. Mitchell is a partner in the Stratford-based law firm Mitchell and Sheahan PC. He represents employers and employees in employment law cases and management in union-related labor law issues. He can be reached at 203-204-3761. Contributed photo

Over the last several years, a new liability theory has been used by workers in employment discrimination lawsuits: implicit bias.

The objective is to try to establish a discriminatory motive in a defendant’s workplace decision-making, particularly as it relates to a protected class of people.

The term “protected class” refers to groups of people who are legally protected from being harmed or harassed due to a shared characteristic (e.g., race, gender, age, disability, sexual orientation). They are protected from discrimination by both federal and state laws.

Implicit bias presents an increasingly difficult problem for employers. Simply put, the doctrine suggests that every one of us has internal, implicit biases, about race, gender, ethnic origin, age or almost any other protected class characteristic that might separate one employee or employment candidate from another. Further, these biases often affect how an individual views people and may influence decisions made about workers.

These biases might not be known or apparent to the individual, the employer or its representatives. They may, in fact, even exist within the mindset of persons who are actively, honestly committed to fighting discrimination. Implicit biases are just a society-wide fact of life — but a fact of life, it has been argued, that acts to perpetuate the effects of workplace discrimination.

Implicit biases also can be found in areas completely divorced from the workplace. It may affect how safe or threatened a person feels walking down a dark street in a strange neighborhood. It may play a role in where one shops or what seat is chosen at the movies.

Implicit biases are formed out of the experiences, background, interaction, mass media presentations and other formulative events and training that touch an individual in the ordinary course of life. They become an integrated part of that person’s outlook, sometimes without any conscious consideration of the matter or even understanding that they are in his or her mind.

Arguments are being made to courts and before juries that implicit bias can result in discrimination in even the most well-intentioned employer’s workplace practices. Some courts have accepted implicit bias evidence. Many have not. A trend seems to be developing that permits judges and jurors to consider implicit bias theory and evidence as part of the overall proofs presented in an employment discrimination case. Such evidence can be very harmful to the employer’s defense. There is really little protection against the fact and influence of implicit bias in the workplace. That is not to say, however, that there is no protection.

Implicit bias strikes hardest in those decisions made on the spur of the moment and those that involve subjective judgments. A good example, taken from a non-employment context, is the police officer faced with a suspect turning and reaching into his pocket for “something” at the moment of confrontation. The officer must make an almost instantaneous judgment about the threat level of that suspect’s action. Is he going to pull out a gun or a phone? Implicit bias may play a strong role in the officer’s view of just how much of a threat, if any, he or she faces in that instant. If the suspect is a minority group member, there may be a greater likelihood that the officer will define the situation as hazardous than if the suspect were white. This can be true even if the officer is a member of the same minority group as the suspect.

Implicit bias can be compensated for where the decisions in question result from longer, more deliberative processes. Investigations into workplace improprieties, for example, carried out by means of carefully constructed, thoroughly considered and consistently applied fact-finding practices can flush out the opportunities for implicit bias to affect the employer’s ultimate decision.

The same thing is true of other personnel matters. Everything from a company’s policies on hiring to its bonus criteria and disciplinary rules can be considered with an eye toward eliminating the influence of any manager’s or administrator’s personal, implicit biases. The more subjective or rushed a decision-making process is, the more difficult it is to squeeze out the effects of implicit bias. No workplace, however sensitive to protected class equality it may be, is ever likely going to be wholly free from the threat of implicit bias.

As well, no workplace can be governed by such a strictly regimented system that subjectivity will never be a part of its decision-making processes, but an employer conscious of the possible effect of implicit bias is an employer armed to limit its impact. Such an employer will be armed with answers to the protected-class plaintiff who relies on implicit bias to make a case of illegal employment discrimination. That employer will be able to demonstrate to the judge or jury that its decisions regarding the protected-class plaintiff fall right in line, and are consistent with its decisions in similar matters concerning majority group employees.

Robert B. Mitchell is a partner in the Stratford-based law firm Mitchell and Sheahan PC. He represents employers and employees in employment law cases and management in union-related labor law issues. He can be reached at 203-204-3761.