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Some of my best friends........

“Some of my best friends…“

Many of us will have heard this comment in the workplace or read it in the defence to an inappropriate comment when somebody seeks to justify a remark, as if this explains or justifies stereotypical assumption.

Such a view exhibits an underlying discriminatory attitude which is often difficult to identify during any training and therefore difficult to tackle. Failure to do so can lead not only to inefficiency within the workplace by not promoting talented individuals who are held back by silent discrimination but also exposes the company to litigation.

There’s a famous test referred to by pyschologists where an individual with quite substantial equal opportunity training was put to a test where images of certain people of colour were put before him and he was asked to click a word accurately describing them. After the initial set of answers which were perfectly correct in not betraying any stereotypical assumption the individual started to exhibit signs of unconscious bias. He was horrified!

The danger is therefore that unconscious bias is around us and we are all potentially open to falling into the trap that it sets. This could then weave its way into any decision making in terms of recruitment, promotion and day to day handling of issues. Ultimately these micro decisions then set the parameters within which broader decisions are made and builds up and entrenches the partitions of silent discrimination.

There have been a number of attempts and schemes to try and alleviate this within the world of HR including:-

• Anonymous application forms; • No request for photo id; • Online applications; • Blank papers for promotion boards etc. But still, there is a danger of unconscious bias. This recently was addressed by the Employment Appeal Tribunal in the case of Geller -v- Yeshurun Hebrew Congregation 23 (March 2016). In this case there was careful examination of what the correct test should be in relation to seeing whether discrimination (in this case sex discrimination) could be inferred. The Employment Appeal Tribunal found that it is not for an Employment Tribunal to look at the subjective state of the employers’ mind (largely because that is difficult to do and is indeed open to “smokes and mirrors” defences) but rather to look at the objective facts and then draw inferences from those objective facts of unconscious discrimination.

It is interesting that a number of employers are now starting to roll out unconscious bias training to their staff to tackle this issue and it is certainly a good idea for those companies that are keen to promote equal opportunities within the workplace.

Companies are right to address the issue because not only does it seek to root out discriminatory attitudes and values but also encourages the potential risk to bad cultural practices remaining unchallenged which can lead to an efficiency within the organisation. So for example, if there is an unconscious bias that women in the workplace would not be willing to work overtime this actually could be costing the business money in that if it did not feel that it had sufficient workers to throw at a particular project that they couldn’t complete it.

So what strategy should be adopted?

• Engage with staff to ascertain where they see evidence of discrimination. Perhaps they are seeing something which a manager has failed to do so; • Address the issues; • Have a second or third pair of eyes on looking at recruitment processes and promotion opportunities; • Undertake unconscious bias training; • Message reinforcement via social media sites that are used by staff and/or internal intranet; • Challenges functions; • Review policies to see whether they are flexible enough to meet individuals’ needs; • Monitor - what do the stats say regarding women in the workplace, people of colour engaged at the highest levels within the organisation; • Engage with interest groups who have specific knowledge in particular areas where people have protected characteristics most noticeably an organisation such as Stonewall who may be able to assist and ensuring the LGBT employees feel comfortable in the workplace.

There is an economic as well as moral argument to tackling the unconscious bias which is an area of discrimination which is largely untouched. However, as interest groups representing those with a protected characteristics rightly continue the struggle to ensure that such groups have a voice within an organisation, surely tackling the problem is key.

David Gibson is a partner at Short, Richardson and Forth LLP. Contact David -at david.gibson@srflegal.co.uk

This was posted in Bdaily's Members' News section by david gibson .