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We Know You Don't Mean to Discriminate - But Are You Biased Underneath the Hood?

Here's an interesting concept related to the law on unintended consequences in HR.  Let's say you've done all the awareness training about discrimination of all forms.  Your company is doing better about overt forms of discrimination, everyone's playing the game and dotting the i's and crossing the t's.

But you still think there are ways for everyone to grow in this area.  You still think that people aren't aware Hate-me-large-600x320 of all the ways they discriminate in a subconscious fashion.  The whole "going with my gut" thing is something you'd like to explore, because you think there's still something nasty under the hood.

So you want to dig deeper to make people aware of what they aren't aware of related to themselves.

There are a couple of ways you could do that.  You could have them take some tests on implicit bias, and maybe you could even set up a little test.

Interested?  Here's more on the concept of testing unintentional bias (also known as implicit bias) from UVA professor Erika James over at the Washington Post:

"The big idea: Invest Co, a leading investment bank with operations worldwide, was concerned that it might be losing ground in the war for talent. Was bias in the talent-management decision-making processes to blame for the limited representation of women and minorities in senior leadership positions?

The scenario: In an industry where women and minorities have traditionally struggled to break in to the senior leadership, Invest Co, like other Wall Street firms in recent years, was on the heels of a discrimination lawsuit that cost the firm tens of millions of dollars in settlement fees. Questioning whether Invest Co engaged in intentional discrimination toward women and minorities, senior members of the human resources team wondered whether a culture of unconscious, yet biased, decision-making was contributing to a lack of diversity that was affecting the firm’s ability to attract, retain and promote the best talent.

To test this theory, the HR team designed an exercise for senior leaders in which they created profiles of candidates for promotion to managing director. The profiles included public-knowledge biographical information, career data (including 360 degree feedback assessments) and numerical performance ratings in four key metrics (ability to meet strategic goals, professional skills, leadership skills and team skills). Although the candidates had different strengths and weaknesses across these dimensions, the value of their total score was the same. Each profile concluded with commentary by the candidate’s managers and their recommendations for promotion. Demographic information such as race and age was not included."

Here's where I get nervous.  I think exercises like this are pretty interesting, but the big question is this as an HR Leader:

Are you creating more liability for your company by testing or conducting awareness campaigns for implicit bias than you would by doing nothing?

Let's say you run some tests or awareness exercises like the above and the results are clear - your managers are full of bias that they're not even fully aware of.   

You think the EEOC or any legal proceeding you're in related to bias/discrimination is going to give you a pass on that?  The answer, I think, is no.  Those tests/exercises would be fully discoverable and for that reason, you'd have to think long and hard before conducting/sponsoring any type of self-discovery beyond the standard training you do related to selection.

It's progressive as hell to think about these deeper issues, and you'd love to help good people understand things that are buried deep inside.  

But you can't do that in your role as an HR leader - too much risk for the enterprise.



Isn't it better to take a proactive approach than to stick your head in the sand especially when it's affecting your ability to get the best talent? I'd rather show the EEOC that I fixed it before a complaint arose than to play dumb. Sure it's a risk, but the benefits of getting top talent will likely outweigh any risks.

Eric Barrett

I think you make a great point, but I guess that's the problem with the way current laws are written and enforced. It's a shame that it's better to ignore the problem and claim ignorance to the EEOC then to be (as Joey says) proactive and try and find a solution.

It's sad that so many of our business decisions come down to "how can we avoid the lawyers?"

Robert Hatta

I get the trade off you're exposing here. But the one you've chosen is to superficially address, but not fix the underlying issue of bias. Isn't that like educating people who practice unsafe sex (IV drug use, et al) on the risks of contracting HIV but not testing to see if they actually have it already - where actual treatment, not preventive education, is required?

Casey Sipe

I think its more important to be proactive with problematic situations than it is to hope they don't exist. Obviously, training is a good way to be proactive, but with training there's generally no feedback, it's all one-way communication. I also agree with Joey that you would probably be better off showing that you found out a problem existed, and then, at the very least, started attempting to fix it, rather than wait for a possible EEOC investigation. And I think, particularly for a company that has already settled/litigated an EEOC complaint, it's important to take whatever steps you can to prevent a re-occurrence.


Hi Folks -

Good comments all.... One of the big problematic things about the concept of implicit bias is that there's really not a lot of research that shows it can be treated if it does in fact exist.

I agree with all that say you need to be proactive. Got it - check. Agree. But, not sure what happens after you are proactive. Does the underlying bias change?

I don't know. I'd have to know the answer to that before I chased it. Without question, it would be attempted to be held against you in legal proceedings... It's a slippery slope and we're not operating in an environment where everyone cares about the right and progressive thing to do....

Thanks - KD

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