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Playing Fair

Bias May Affect Employees, Managers Subconsciously

Last fall, Bank of America settled multiple discrimination claims by paying more than $4.2 million in back wages and interest. These claims came from female, black, and Hispanic job applicants. They claimed that BofA unfairly kept them from jobs in multiple states—and the Department of Labor agreed. In 2017, BofA settled a $1 million claim dating back to 1998. They inherited this claim from NationsBank, which BofA acquired. NationsBank had what Labor called “systemic” issues with discrimination. Even decades later that ghost still haunts Bank of America.

In 2019, Intel settled a federal pay discrimination case for $5 million. Dell Computers ended a flurry of accusations with a $7 million settlement. They are hardly alone. In the same year, headlines like these swirled around Oracle, Google, JPMorgan, and GoldmanSachs.

But big money finance and tech giants aren’t the only culprits. Neither is private industry the only sector in which this occurs. The City of Aiken, South Carolina recently settled with an employee alleging a similar violation, while the City of Ocala, Florida settled a trio of similar lawsuits for $500,000.

These cases aren’t always about race or gender. The Woodburn School District in Oregon recently lost a case involving a job candidate’s immigration status. The Department of Justice awarded the candidate more than $5,000. They also ordered the district to pay penalties to the government for a similar amount. Additionally, the Department of Justice will monitor mandated training for three years. The financial cost of the suit only compounds the loss of credibility. Woodburn School District serves a large number of Latin American students, and now must do so in light of this prejudice.

“Unconscious” Institutional Bias

These companies, cities, and districts have at least one thing in common: they at least initially upheld their innocence. It’s a safe bet that none of them had written policies enforcing discriminatory hiring. It’s unlikely they codified pay gaps, access to services, or promotions behind prejudicial guidelines. The people who made the decisions that got their employers sued probably had no ill intent.

But that hardly matters. Direct evidence of bias is rare. Still, there are thousands of claims brought against employers every year based on circumstantial evidence.

These cases merely claim that an otherwise neutral policy affects an individual or group of individuals adversely. As the Supreme Court ruled in the 1970s, these policies are “fair in form, but discriminatory in operation.”

The courts have continually recognized de facto discrimination like this. In a 2015 case, a non-profit group sued the State of Texas claiming that it was applying public funding unfairly. They claimed federal affordable housing tax credits were being disproportionately allocated to predominately black neighborhoods.

The group cited that more than 92% of funding was going to areas with fewer than 50% white residents. They said this violated the Fair Housing Act’s rules against “disparate impact,” which means it adversely affects a specific group. In this case, whites. This claim effectively said that the state was engaging in explicit bias.

While the federal and appeals courts agreed, the Supreme Court did not. They ruled that the disparate impact language in the law was designed to help “counteract unconscious prejudices and disguised animus” that comes with implicit bias. The Court also warned that since Texas’ application of the funds were not the cause of the disparity, there could be no claim of disparate impact. One could argue, in fact, that the state was trying to remedy the underlying disparity of the concentration of blacks in low income areas.

Your Implicit Bias

The concept of implicit bias has come up a lot in the media lately. The point of these efforts is not to convince us that we are all secret bigots. As with this article, the goal is to heighten our awareness of our own preconceived notions before our internalized prejudices inadvertently become outwardly harmful to others.

Ohio State’s Kirwan Institute for the Study of Race and Ethnicity describes the key characteristics of implicit bias:

  • Everyone has implicit biases.
  • Explicit and implicit biases are distinct, but related. You can have both and they can feed each other.
  • Implicit biases can conflict with our stated beliefs. You might firmly believe in the equality of all people, but still hold an unconscious bias to the contrary.
  • While most implicit biases favor groups which you belong to it is not uncommon to have biases against your own groups. That’s called “internalized oppression.”
  • Implicit biases are not set in stone. They can grow and change over time, and even be unlearned.

To demonstrate this concept, take a look at the Müller-Lyer illusion below.

Which is longer: the black line in Segment 1 or that in Segment 2? You might have guessed that B is longer. It’s not. They’re the same. The arrow points at the end of the lines are influencing the way you perceive their length. The figure below confirms that the two segments are in fact the same length.

In the same way, your brain makes assumptions about people based on their social group. Their skin color, weight, age, gender, sexuality, and other attributes all act like the arrow points. Your socialization informs how you interpret those cues, thus unconsciously reinforcing stereotypes.

These biases bleed into daily life more than you might expect. These often manifest as ‘micro-aggressions,’ statements or actions that seem insignificant or are even intended to be positive, but ultimately belittle another person.

Columbia University Professor Derald Wing Sue told CNBC about one such incident. Sue says it isn’t uncommon for people he meets to comment on how wonderful his English is. While this is meant as a compliment, the statement subverts his nationality. “What they are saying is you are a perpetual alien in your own country and you are not a true American,” Sue said. He continues, “My response now is, ‘Thank you, I hope so, I was born here.’” His response, while wrapped in cordiality, highlights the unconscious bias in the other person’s comment.

Sue was born in Portland, Oregon. A graduate of the University of Oregon, he has penned several books and more than 150 articles on topics in psychotherapy.

Think for a moment about how you might feel if you had complimented someone with that background on their English.

Other micro-aggressions could include, but are definitely not limited to:

  • Assuming a person has an affinity for a certain kind of food or music based on their perceived ethnic, national, or racial background.
  • Selectively enforcing workplace policies with a person or people of one group (gender, race, etc.) but not others. This includes everything from attendance and dress code to insubordination and stealing.
  • Not inviting a specific person to an after hours event. (Not inviting a male colleague to a ‘girl’s night out’ or a female colleague to a poker night)
  • Commenting on a person’s physical appearance. (Saying “You’re looking thinner! What’s your secret?” or asking a person of color: “Can I touch your hair?”)
  • Presuming an employee is uninterested in a career training opportunity because they are a new parent.
  • Assuming a colleague (often a woman or a person of color) is ignorant of something and explaining it to them in a condescending way. (Commonly called ‘mansplaining’)
  • Refusing to use a person’s preferred pronouns once they have made it clear which they prefer.
  • Making jokes in the workplace about people with mental illnesses (PTSI, depression, etc.).

As a professor, Sue can respond that way to a student or a colleague without fear of reprisal. But a junior employee could be jeopardizing their career by speaking up to a superior. Therefore, the culture that allowed the micro-aggression continues until a costly incident occurs.

While a single micro-aggression is not grounds for a complaint or a lawsuit, it can be used to prove intent. A pattern of micro-aggressions could be considered harassment if they target a protected class. If the perception is that raises and promotions are withheld on the same basis, the outlook for employers is grim.

A Problem for Public Entities

#MeToo has sparked a wave of lawsuits and accusations of long-time harassment, discrimination, and abuse. But not every case is so black and white, and that is especially true of those involving implicit bias. Thanks to #MeToo, however, those times are changing. Groups like Time’s Up Legal Defense Fund and BetterBrave have helped people find legal recourse against their employers. But they’re not the only ones.

In 2018, two New York women left jobs where they were dealing with what they believed was implicit bias. These women, Ariella Steinhorn and Mary Rinaldi, describe being removed from high profile projects, treated dismissively by their managers, and having their authority invalidated.

Their managers created an environment where they could not perform their core job functions, let alone succeed in them. These women leveraged their professional networks to find the guidance needed to fight their employers. They both received generous severance arrangements as a result.

Since then, Steinhorn and Rinaldi have sought to share the same kinds of guidance and legal resources they had with everyone. To that end they founded a startup company called Simone. So far, Simone has helped dozens of claimants receive favorable severance packages.

Lawsuits are costly. So Simone’s attorneys convince the employer to release the client with a generous severance. This is done by quickly and simply gathering evidence that demonstrates a pattern of behavior. In the case of one of Simone’s founders, that information was a twelve-page packet of emails. It included positive feedback from her boss contrasted with instances where the manager acted in spite of it. While simple and circumstantial, it was also extremely effective.

Simone’s goal is simple. They seek to level the playing field between employers and employees. They want to evaporate the unfairness created by implicit bias.

The financial toll of dealing with Simone is preferable to a protracted lawsuit and the resulting fines. But in either case, the damage to the organization and to the manager is profound and long-lasting. It would be financially and ethically optimal to conduct business without the drag of implicit bias.

Avoiding Bias in District Services

As public servants, Pool members should already be providing services fairly and without bias. But in the spirit of risk management, it’s wise to validate your assumption. Take a good look at your operations and ensure you are fairly applying district resources without bias. Here are some tips:

Water & Wastewater Districts

Maintenance on your service lines should be conducted without regard to demographics or economic status. In fact, if an economically disadvantaged area has aging infrastructure, it may need more service rather than less or equal.

Health & Fire Districts

Ensure that community-supporting services reach populations that might not seek out aid on their own. These could include groups that don’t speak English or groups with large rates of self-employment that might omit them from traditional health care coverage.

Park & Library Districts

Make sure your facilities are available to everyone regardless of protected class. These include language, race, gender, ability, and more. For example, someone might want to rent a location for a holiday you aren’t familiar with. Ensure your websites and forms are in more than English and are accessible to the hearing and visually impaired. It’s impossible to have an option in every language. But making an effort will go a long way to demonstrating your district’s commitment to equal access.

Wrapping up

The best protection for you and your district is to be aware of your biases. In risk management, we would call this identifying the risk. You can’t prepare for a problem, reduce its impact, or its likelihood unless you accept it’s a threat.

Researchers at Harvard established a tool that tests for bias for white or black people, or neutrality. People around the internet and the media have been buzzing about their results. Many are finding that they have strong, previously unknown biases.

The point of this study is not to reveal everyone as a secret racist. Its purpose is to help people understand the way society has wired them to view others. This awareness can help prevent us from making decisions that are outwardly, expensively discriminatory. If you are interested in taking the test, go to Remember, a result that shows an unconscious preference for a given race doesn’t make you a racist. It is your words, actions, and inaction that can be taken as condemnable behavior.

Okay, I’m Biased. Now What?

For tips on how to combat implicit or unconscious bias in your hiring and HR practices, check out our companion piece. Also, be sure to check out the recording of our December 10, 2019 webinar on Understanding Implicit Bias. The webinar was presented by corporate leadership expert Jenine Jenkins, brought to us by our partners at CPS HR.

View the recording at

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