Unconscious workplace bias was the subject of a front-page story by Journal Record legal reporter Marie Price. Although more subtle than overt discrimination, unconscious bias -- that is, making a decision based on a stereotype or other unconscious factors regarding a protected category, even without discriminatory intent -- has been recognized by the Equal Employment Opportunity Commission as a form of illegal discrimination.
The EEOC recently launched its E-RACE (Eradicating Racism and Colorism from Employment) initiative as a way to tackle the issue.
Sam Fulkerson, a McAfee & Taft employment attorney who was interviewed for the story, said there are steps companies can take to reduce the possibility that their hiring, promotion, discipline and termination policies and practices aren't subject to unconscious bias discrimination claims. He recommends that employers undergo specific training to make them aware of unconscious bias issues, ensure there is diversity among decision-makers, and implement a multi-layered interview process when hiring. Making sure that all employment decisions are truly based on job-related factors is also key.
"If an employer has done absolutely nothing to make sure that their decision-making process is job related and that it's really designed to find the best people for the job, based on skills and based on job requirements, then they have assumed a risk that they may let discriminatory bias affect the decisions, and that's foolish," said Fulkerson.