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The Modern Workplace

The Value of Unconscious Bias Training
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Posted in Diversity & Inclusion, Employment Law Updates, Investigations & Training
Whether we realize it or not, we all have unconscious biases - even scientists who are trained to overcome them. Events of the last year have riveted our attention not only on a global pandemic, but also on race relations. Addressing this topic is important to us all - in our businesses and beyond. Unconscious bias training helps us understand why we harbor biases, how to avoid bad decision-making associated with those biases and how to promote greater inclusivity. 
The problem with unconscious biases is we don't see them. As Henry Thoreau said, "Many an object is not seen, though it falls within the range of our visual ray, because it does not come within the range of our intellectual ray, i.e. we are not looking for it. So, in the largest sense, we find only the world we look for."
Why is it hard to avoid unconscious biases? 
  • Studies have shown that our brains are exposed to millions of pieces of data at any given moment - computational neuroscientists have estimated human storage capacity between 10 terabytes and 100 terabytes (one terabyte is equal to about 1,000 gigabytes); 
    • Yet we can only consciously process fewer than 50 pieces of data in that time;
  • Our brains are constantly filtering data - some of the filtering is productive and necessary, but some allows unconscious bias to operate in the background. 
Just think of data management and maintaining our own electronic and media files. our "mental rolodexes" are only so big!
Consider the situational question that spread around years ago:
  • A man and his son are in a terrible accident and are rushed to the hospital in critical care. The surgeon looks at the boy and exclaims "I can't operate on this boy, he's my son!" How could this be?
Now even school children can answer: Because the surgeon is his mother! Or perhaps the man and his same-sex spouse have a son together. 
Lawyers have long approached jury panels in voir dire (jury selection) to try to elicit prejudices or biases with questions such as: 
  • "Does any member of the panel have any special knowledge about discrimination, or harassment, or retaliation?" 
  • "Does any member of the panel feel that even in your subconscious, you might hold it against my client because my client is a corporation?"
Why is it difficult to talk about unconscious bias? 
  • Bias has a negative connotation
  • Bias gets confused with bigotry or intentional prejudice
  • Bias is not always inherently bad, but it can lead to false assumptions and bad results
Nonetheless, it is easier for everyone to come to unconscious bias training with an open mind and an understanding that all of us have biases to some degree. 
Biases can be based on  Protected Classes (race, gender, age, nationality, disability, religion, sexual orientation, gender identity, etc.); Demographics (even accents); Life Circumstances (married/single, level of education, child or family member care); or other matters having nothing to do with capabilities, performance, integrity, and most qualities that businesses value. 
We might unconsciously think that something "normal" is right, and something "different" is wrong, which can impact our judgments about people around us. 
Yet we know that diversity is a competitive advantage, and diverse teams outperform homogeneous ones, especially when solving complex problems. 
By recognizing that everyone has unconscious biases, we can stop those biases from resulting in unwarranted assumptions and misguided decisions. 
We can reduce biases and resulting biased decision-making through training, including the science on how the brain functions, and moving into workplace-specific scenarios:
  • Recognize that the human brain makes mistakes - if everyone tries to become more aware, we will reduce mistakes;
  • Establish clear criteria in advance of making decisions; 
  • Pause and reflect on decisions;
  • Hold decision makers accountable;
  • Train leadership and employees with an open dialogue and awareness.

*As of this writing, President Trump has just signed an Executive Order on Combating Race and Sex Stereotyping: https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/, applicable to certain federal contractors and grant recipients. If implemented as to federal contracts entered November 21, 2020 and beyond, federal contractors and other employers will want to consider the ramifications of the EO in policies and training.

If you would like to hear more about unconscious bias training, this new EO or have a specific employment question, please feel free to contact me or any Lathrop GPM employment attorney.

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The information contained in this post is provided to alert you to legal developments and should not be considered legal advice. It is not intended to and does not create an attorney-client relationship. Specific questions about how this information affects your particular situation should be addressed to one of the individuals listed. No representations or warranties are made with respect to this information, including, without limitation, as to its completeness, timeliness, or accuracy, and Lathrop GPM shall not be liable for any decision made in connection with the information. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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