“Subtle Bias” – What Employers Should Know Before It Becomes a Lawsuit

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By Eric B. Meyer

I recently read this CareerBuilder poll, which found that the majority of workers don’t aspire to leadership roles. Here are the numbers:

  • One in five (5) workers (20 percent) feel his or her organization has a glass ceiling —  an unseen barrier preventing women and minorities from reaching higher job levels.
  • However, when looking only at workers who aspire to management and senior management positions, the percentage increases to 24 percent and is even higher among females (33 percent), Hispanics (34 percent), African Americans (50 percent) and workers with disabilities (59 percent).

The kicker is that only 9 percent of white men think there is a glass ceiling for women and minorities at their organization. The disparity in perception startling. The actual numbers aren’t any easier to swallow. According to this 2013 Forbes article, “only 1 percent of the nation’s Fortune 500 CEOs are black. Only 4 percent are women. And not a single one is openly gay.”

Does overt discrimination have something to do with it? I can’t point to a particular study, but I’d be foolish to say no. But, this more recent article from attorney Jonathan Segal, highlights the effect of subtle bias on the relative lack of female and minority business leaders.

What is subtle bias?

Segal defines subtle bias as “a slight that demeans or marginalizes the recipient.” So, by definition, these micro-agressions may be so small that we don’t even notice that they occur in the workplace.

But subtle bias does occure, and, as Daniel Schwartz writes, it may only be a matter of time before these micro-aggressions form the basis for an employment discrimination lawsuit.

It’s not so farfetched. Indeed, a disparate treatment claim is where an employee alleges that the employer treated the employee worse because of his or her race, gender, national origin, or other protected characteristic.

And since the “proof” in most disparate treatment cases consists of indirect, circumstantial evidence (as opposed to an employer admission, such as, “I fired him because he is Jewish”), it’s time to weed out and eradicate subtle bias from the workplace.

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Address subtle bias proactively

In his article, Segal offers suggests that the solution starts with training:

Employers need to expand the training of leaders to include awareness of micro aggressions and inequities, which could be referred to collectively as micro indignities. The training should cover not only which overt and covert comments and behaviors to avoid. It should address how to respond if a leader hears or witnesses a micro indignity.”

I’m all for training. So, train your supervisors to avoid these behaviors.

Also, show employees how to identify subtle bias and encourage those who believe that they are victims of subtle bias to come forward and complain so that the company can address it. Otherwise, enough micro-aggression can snowball into a discrimination lawsuit avalanche.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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