Recently, social scientists have been conducting studies on the subject of implicit biasness in the workplace. Implicit bias is a sort of discrimination that takes place without the person even being aware they are doing it. For instance, an employer may give preference to white employees or be more inclined to hire a white applicant without necessarily realizing they are doing it. While most people would agree that such conduct is not intentional discrimination, the Equal Opportunity Employment Commission has taken the firm position that any bias, conscious or unconscious, results in intentional discrimination. Already one federal court, the First Circuit Court in Thomas v. Eastman Kodak Co., has noted that a disparate treatment claim DID exist regardless the lack of conscious bias. The recent trend leads to the obvious question — how does an employer prove that its decision-maker was not unconsciously biased when he or she made an adverse employment decision? After all, a person cannot testify with respect to his or her unconsciousness. Thus, many legal experts fear that these “implicit bias” cases will boil down to scientific, expert testimony on the subject, or worse, jury speculation as to whether a decision-maker was unconsciously biased.
As St. Louis Employment and Labor Law Attorneys who have been defending organizations from allegations of discrimination for over 50 years, we have found that the best way to avoid allegations of implicit biasness in the workplace is having written policies that maintain an objective procedure for hiring, firing, promoting, demoting, and other employment decisions. In other words, take the decision-maker’s subjectivity out of the equation. By shifting the focus from the decision-maker’s subjective unconsciousness to the company’s objective written compliance manuals and hiring directives, McMahon Berger has assisted many employers in avoiding allegations of implicit biasness in lawsuits and grievances.