HR Management & Compliance

Are You Guilty of ‘Unconscious Discrimination?’

EEOC has begun E-RACE, a program to root out managers who discriminate in hiring or promotion while possibly being unaware that they’re even doing it.

HR managers at two of America’s largest retailers, Walgreens and Wal-Mart, must be in a state of shock these days.

After years of what they believe was compliance with both the letter and spirit of anti-discrimination efforts, both companies have been hit with massive class action suits for —you guessed it—discrimination.

Walgreens has been accused by some of its African-American workers of assigning them, far out of proportion to their number, to stores in poor neighborhoods. And some two million women at Wal-Mart have claimed in a class-action suit that they’ve been unfairly treated in both hiring and promotion.

The reason this alleged conduct occurred? Unconscious discrimination.

Unconscious or, as it’s sometimes called, implicit, unexamined, or systemic discrimination occurs, say plaintiffs’ attorneys, when management hires or promotes on the basis of subtle, ingrained biases against certain groups. These biases are based on stereotypes or other preprogramming of their attitudes in ways they are often not even aware of. Discrimination also occurs, on an institutional level, when the biases are built into formal hiring programs or systems.


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One example, cited by attorney Joan Williams of the Center for WorkLife Law in California, and as reported by Scripps News, is the female lawyer who works full-time and is away from her desk. She’s assumed to be at a meeting. But change that lawyer’s status to part-time and the exact same absence is assumed to be for taking care of a child.

“Suddenly her job evaluations go bad,” Williams says. “That’s the face of discrimination today.”

Private organizations have been joined by the EEOC in warring on this new interpretation of how discrimination can happen. The agency has launched an initiative called Eradicating Racism and Colorism from Employment (E-RACE). Under the plan, the agency will use its enforcement muscle to punish hiring practices that suppress any class of applicants because of preconceived notions about the group as a whole, as well as those that fail to fully explore all available applicant pools, including those made up of minority groups.

One practice specifically frowned upon, says the agency in a Law.com report, is rejecting an applicant on the basis of name, arrest and conviction records, or credit scores … often even before meeting the individual. This can happen as new electronic recruiting systems process large numbers of applications without allowing for individual explanations of what’s on them.


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This is discrimination because some ethnic groups have lower credit scores or more frequent criminal records. Such data, however, says nothing about any individual in that group. The agency’s position is that every individual must be considered as such from the start of the process, and hired or rejected only on objective criteria.

Some in the employment law community are dubious about the validity of prosecuting employers for unconscious discrimination. They also believe that translating the concept into regulatory action can have negative, unintended consequences.

Attorney Charles Feuss of the Minneapolis office of Ford & Harrison, as quoted in the Minneapolis Star-Tribune, believes that acting against unconscious discrimination can result in reverse discrimination. As an example, he cites the Wal-Mart case, in which company managers as a group are accused of bias against women.

“That’s like accusing all the store managers without having to prove anything about each of them,” he says.

Do you buy the notion that you may be discriminating without even being aware of it? Use the Share Your Comments button and let your colleagues know.


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2 thoughts on “Are You Guilty of ‘Unconscious Discrimination?’”

  1. I can see lots of subtle discrimination, and it may be borderline unconscious. Most of our engingeers are VA Tech graduates. We recruit much more heavily there than from more racially mixed colleges, for example. And in culling through stacks of resumes, I am likelier to phone a person whose name I can pronounce. Recruiting at a college fair I met a young white man with a background similar to my own, and as we quickly discovered people we had in common, our conversation was lengthy and animated. Not so with first-generation minority applicants and students from other cultures. The person you feel a connection with has the decided edge in creating the important first impression that gets him/her to the next stage.

  2. It’s absolutely the case. I have been in HR for 20 years and have seen it in each and every one of those 20 years. It has become more undercover, but it happens so regularly that it is really, just all part of the game.
    The unconscious part is the only arguable point. It’s not unconscious. It may be unacknowledged, or even unbelieved, but unconscious it is not.

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