Regardless of career stage or industry, unconscious bias is quickly becoming an inevitable challenge on the horizon for both employers and employees. It’s becoming a topic of major concern in certain areas of employment discrimination, particularly due to its subtle, yet pervasive, nature.

The risks of engaging in such biases may not seem immediately clear and apparent to companies who believe themselves to be in compliance with current anti-discrimination policy and legislation. This can lead to a culture of indifference among management and supervisors, allowing poor employee relations, and discrimination, to thrive unchecked.

What is unconscious bias?

Unconscious bias is a sociological term used, in the employment discrimination context, to describe an employer’s inadvertent use of unfair stereotypes and assumptions based on the particular social or cultural status of an employee when making employment decisions. Unconscious bias can occur at any level of the employment process, and is growing prevalent in hiring, termination and promotion.

In fact, it is increasingly common to find that unconscious bias, rather than outright discriminatory practices, motivate an employer’s unfair treatment of workers. Pinpointing the exact nature of unconscious bias can be difficult, however, and the details of its manifestations are not always easy to articulate or to prove.

Yet, the Equal Employment Opportunity Commission (EEOC), the federal agency that handles employment discrimination complaints around the country, has addressed unconscious bias, chiefly in terms of racial discrimination.

In 2013, the agency released a report addressing the issue of unconscious bias as a major hindrance to equal opportunities for African Americans in the workplace. The report cited unconscious bias and perceptions about African Americans “that operate automatically” as persistent and significant factors in employer decision-making.

In 2014, the EEOC also expressed a decision to tackle unconscious bias against women in the workplace. Just as with African Americans in the workplace, women also increasingly experience unconscious bias exposing female workers to unfair treatment this is often more subtle than outright sex or pregnancy discrimination.

The concept of unconscious bias, though not new to the legal landscape, is only just beginning to take shape. It has been used recently in two major cases as a legal basis for discrimination suits – in the sex discrimination case brought by millions of female Walmart workers and in a recent race discrimination case brought by African Americans against Walmart.

Even though, the current views about unconscious bias range, with some in the legal field viewing it as unremarkable social science theory and others calling it an valid estimation of the current state of discriminatory practices in the workplace, unconscious bias theory is gaining a foothold as an important basis for advocating for the employment rights of traditionally discriminated groups.

Challenges When Unconscious Bias Becomes an Issue

The subtle and less than explicit nature of a discrimination claim based on unconscious bias raises unique and difficult challenges for employees and employers alike. How would an employee prove that an employer unknowingly overlooked their right to a workplace free of discrimination as outlined in federal or state law? How should an employer guard against implicit assumptions prevailing, and becoming discriminatory, in the workplace?

From the employee perspective, it helps to evaluate the recent cases involving unconscious bias where the EEOC has helped establish certain approaches. In the Walgreens case, the EEOC began with numbers and statistics which helped to establish the fact that Walgreens engaged in assigning a disproportionate number of African-Americans to positions in low-income areas or black neighborhoods.

It’s also important to note that unconconscious bias and disparate impact theory often go hand-in-hand. Most discrimination claims are based on disparate treatment, which involves proving that an employer treated a worker unfairly due to discriminatory intent, but with unconscious bias the intent factor is more elusive. With disparate impact theory, the employer’s intent is not an issue. Rather, the main focus is on the results of employment decisions and the fact that those results are discriminatory in nature.

From an employer’s standpoint, the best way to address the issue of unconscious bias may lie in finding ways to educate management, supervisors and workers on the numerous ways that unconscious bias can manifest in the workplace and providing training and skills development to combat such impacts.

When You Suspect Unconscious Bias on the Job

While unconscious bias poses serious challenges for employees hoping to address the subject of discrimination with their employer, it is not impossible. The strategic guidance of a well-qualified employment discrimination attorney is essential in navigating such complex matters, but even before getting the assistance of an employment rights lawyer, employees can take practical steps to hold employers accountable.

First, find out the details about your company’s discrimination policy. Such policies will serve as the basis for your employer’s responses and reactions to any complaints of discrimination, so knowing this policy ahead of time will help to solidify your perspective as well as provide information about your options for filing company complaints or grievances.

Also, it’s important to document events and conversations related to unconscious bias in the workplace. It’s also important to note any unfair discrepancies or inequalities in terms of numbers of workers hired, fired or otherwise adversely affected within the company. This information may prove invaluable as your case develops.

Recognizing Unconscious Bias

Even the Supreme Court has acknowledged that unconscious bias is increasingly the apparent culprit in cases involving modern-day discriminatory practices. Although not in the context of employment discrimination, the Supreme Court recently recognized that unconscious bias plays a significant role in discriminatory housing practices. This recognition of unconscious bias from the highest court in the country should open doors for the theory to gain more and more validity as a basis for discrimination claims of all types, including employment discrimination.