The Fiction of Unconscious Bias

As an employment discrimination attorney, I am often confronted with the misconception that racism is a construct of the past. I assure you, it is not. It is painfully clear anytime you watch the news. Just this week, we heard about John Henson’s humiliating encounter with Schwanke-Kasten Jewelers when the Milwaukee Bucks player who recently signed a $45M contract tried to buy a Rolex. This is a perfectly good example of why I think the trendy and controversial theory of “unconscious bias” is a fiction.

Searching for an explanation to the rampant racism in America, there has been a lot of chatter about an “unconscious bias” pervading people’s minds, but this theory inaccurately characterizes our social climate. While I don’t doubt that there are people who exhibit “implicit” bias, implicit bias exists on the surface and is therefore known to the person. What has actually developed through the years is “politically correct” racism.

It’s not that after decades of social change, we have all learned to recognize our similarities and appreciate each other’s differences. The stereotypes, and inexplicable intolerance, are ingrained. What we have done is deem it socially and morally reprehensible to verbalize or otherwise externally manifest prejudice. However, that prejudice has only been camouflaged in the workplace.

The writing is on the wall when the unemployment rate for black workers is double that of white workers despite Caucasians making up 72% of the nation’s population. Employers frequently hold black employees to different standards and judge their performance more critically. This makes it very easy for employers to justify their decisions to promote white employees or reject an equally qualified black employee’s job application.

I recently met an attorney who works in a primarily Caucasian, highly populated metro area. The white majority is followed closely in number by the Hispanic population, with the African-American community a distant third. Most people, including myself, would consider this metropolis a progressive city, although politically conservative. My extremely well-educated colleague explained that even with his highly successful practice, most white clients refuse to hire him. A compassionate looking gentleman, he advertises his photo, putting a face to the name, yet he receives scant calls from white residents, which is telling given the city’s racial makeup. What struck me was that he, too, gave credence to “unconscious bias.” I had to disagree. When a white client knowingly won’t call on or hire a black attorney, that is a thoughtful decision based on prejudice. The takeaway? Racism is a blaring problem in this country and what we’ve done so far has not eliminated discrimination in employment.

So where do we go from here? Even with California’s supposed “pro-employee” laws, it often takes an employee Herculean effort to prove that he or she was discriminated against on the basis of race (or for that matter, national origin, religion, sex, sexual orientation, age…you get the point). Firstly, with the oppressive slashing of court funding, employees are finding delays in their cases for several months, or even years. These delays cost money, time and other resources which are often scarce for wrongfully terminated employees. When the employee finally gets his day in court, he is met with a very heavy burden of proving the basic elements of his case. In contrast, once the employee meets that burden, the employer need only articulate a legitimate non-discriminatory reason for that negative employment decision. The burden then shifts back to the employee to dispute that reason as pretext. Unfortunately, most of the evidence in a case such as this is solely in the hands of the employer, who all too willingly does its best to keep it out of the employee’s reach.

Clearly, the most effective solution to racism is education. Education of young minds who will eventually become the pulse of this nation. However, this is a long-term strategy that doesn’t provide immediate relief to those who currently suffer the effects of discrimination in the workplace. In the mean time we must stop tying litigants’ hands behind their backs. They must be given equal access to the courts and equal access to evidence which supports their claims. Most importantly, we must make it more than a mere nuisance for employers to prove that they acted without discriminatory intent. If we can’t bring these changes to the courthouse, we may only be left with mandated affirmative action plans, which will surely divide the country further. Regardless, employers need to know that whether their bias is unconscious or not, justice means zero tolerance.