The Self-Check Technique for Revealing Unconscious Bias: Preventing Discrimination Lawsuits

by on October 11, 2011 · 1 Comment POSTED IN: Sample Management Training Videos

Video Transcript

Voiceover: Welcome to this Quick Take for Managers. Our topic today: The Self-Check Technique for Revealing Unconscious Bias: Your best strategy for preventing discrimination lawsuits.

Our legal experts review most employment law cases filed in a given year and we find that there’s ONE thing – unconscious bias on the part of managers – that provokes more lawsuits than anything else. We’re going to review several actual cases where companies got hammered in court. We’ll show how unconscious bias led managers to make very bad decisions. And we’ll talk about how, by using what we call the “Self-Check Technique,” the managers could have prevented these costly, disruptive lawsuits.

By the way, discrimination lawsuits have gone up 268% over the past 15 years. And that rate of increase is nine times greater than any other type of employee lawsuit.

Nobody likes to admit it, but we all have biases, at least to some degree. We can’t help it. Since prehistoric times our brains have become hard-wired to categorize the data we get from the world around us, and that often translates into biases and prejudices.

That’s why it’s not uncommon for supervisors act on unconscious bias, thinking that, say, old people can’t learn new things. That overweight people are lazy and good-looking people must be smart. All of us are going to have feelings like this, and we’re either going to be aware of them – that’s conscious bias – or unaware of them – that’s unconscious bias, and that’s dangerous.

Now, every company has tools to prevent bias from influencing decisions. One is your company policy manual, which among other things lays out policies and procedures required to comply with federal and state laws. When the manual says a new job opening needs to be posted internally, and that the manager needs to interview several people for the job, your company is trying to ensure that managers hire and promote fairly. Well-thought-out job descriptions do the same thing – they encourage hiring managers to emphasize skills and experience rather than personal preferences that may be influenced by bias.

But policies and procedures can’t totally control supervisor behavior. Let’s look at the graphic. All supervisors fit one of four bias profiles. First, there’s Dana, who’s aware of his biases and goes right ahead and acts upon them. He’s the kind of boss who wouldn’t think twice about, say, denying jobs to qualified minorities or excluding women from promotion opportunities. It’s unlikely you have a lot of Danas at your company. But if you did make the mistake of promoting one, sooner rather than later one of two things will happen: Your company will see what he’s doing and fire him. Or he’ll provoke a lawsuit.

If you’re like Kim, you know what your biases are and hold them in check. You do whatever it takes to make sure your biases don’t influence your decisions and provoke lawsuits.

The Chrisses of the world have unconscious biases. For example, Chris might be proud of her Irish heritage and not even be aware that she just … feels more comfortable around Irish people. But in the workplace she plays by the rules. She adheres strictly to policies and procedures, so her biases don’t get her into trouble.

And then there’s Alex, who is oblivious to his biases and unconsciously acts on them. Alexes are hard to spot, but they’re powder kegs. They’re a lawsuit waiting to happen. Unfortunately, there are lots and lots of Alexes out there.

Now, you were promoted to a leadership position in your company because somebody thought you had good judgment and higher-than-average emotional intelligence. Somebody thought you were a Kim, that you were self-aware enough to use the “Self-Check Technique” whenever making a decision that could adversely affect an employee or potential employee

What is the Self-Check Technique? It’s a way to help you 1) revisit your conscious biases and make sure they’re not influencing your behavior; and 2) uncover unconscious biases. Let’s lay out a roadmap for how it works.

Before you make a decision that concerns an employee, you need to ask four questions:
1. Will this decision adversely affect the employee? If yes, keep going
2. Is the employee in a protected class? If yes, again keep going
3. What potential biases, conscious or unconscious, could affect my judgment (e.g., gender, disability, race, age, national origin, religion, sexual orientation, maybe something else)?
4. Ask yourself, “Am I doing this for the right reasons, or is one of my biases influencing this decision?”

Let’s look at some real cases. In Lewis v. City of Chicago, a group of employees, mostly male, were asked if they’d like to go to a conference in Washington. A supervisor decided that everybody had to double up on rooms to save money. So he sent out a memo saying that “no lone female” could attend. Turns out that only one woman expressed interest, so the boss said no. You can’t go. The woman, who felt the conference was important to her development, sued for sexual discrimination.

But in court, it sure looked like the manager had motivations – probably unconscious – that had nothing to do with controlling travel expenses. It didn’t help that the woman’s attorneys documented that some of the guys ended up staying in single rooms.

If this manager had conducted a Self-Check, he might have said to himself, “Wait a minute. This decision adversely affects a member of a protected class. Is it really about saving a few bucks on the hotel? Or does some part of me want to exclude women from this trip?”

In Alton v. Echostar, a hiring manager interviews a blind man for a customer service job. The recruit assures the manager that he’s proficient in a “text-to-speech” software program and can do the job. The manager can’t imagine how a blind man can “read” a computer screen. He initially rejects the applicant but ends up inviting him back for a series of tests designed for sighted people, which the applicant fails.

The man sued, went to court and won $8 million. The jury asked the judge if they could give him 30. Now, did this manager have a conscious bias against blind people? Probably not. At an unconscious level, he may simply have thought that disabled people are high-maintenance, not realizing that today the disabled have remarkable tools that allow them to function normally. If he’d done a Self-Check, he might have said, “Okay, I’m uncomfortable with this situation, but let me check out the text-to-speech software and see whether this guy can really do the job.” If he’d done that, he’d have learned BEFORE the lawsuit what he learned in the courtroom, where the blind man demonstrated to the jury that he could process 400-700 wpm, more than most sighted people.

Finally, let’s talk about EEOC v. Alamo Car Rental, where a Muslim woman insisted she had to wear a headscarf during the holy month of Ramadan. Her boss thought it made customers uncomfortable and ordered her to take it off. She refused on religious grounds and he fired her.

Guess what it came down to in this case? The company’s dress code, which did NOT prohibit headscarves. This is a plaintiff attorney’s dream come true, where a supervisor acts in contradiction to the company’s own policies. In court, the attorney will conduct your Self-Check for you, asking, “Well, if the company wasn’t concerned about headscarves, why were you?” No matter what you say, it’s going to sound as though YOU were uncomfortable with the scarf due to conscious or, more likely, unconscious bias.

As we close out this Quick Take, let’s sum up what we’ve learned. First, that even the best among us have biases. Second, that responsible managers are aware that they have both conscious and unconscious biases, and that they need to conduct the four-question “Self-Check” before taking any adverse action against a job candidate or employee. Finally, remember that your company’s policy manual is your friend. There’s no better protection in court than being able to say, “In taking action against that employee, I followed policies and procedures to the letter.”

Thanks for listening.

1 Comment on This Post

  1. October 26, 2011 - 10:35 am

    How to keep biases from affecting managerial responsibilities

Leave a Reply


Request a Free Demo

We'd love to show you how this industry-leading training system can help you develop your team. Please fill out this quick form or give us a call at 877-792-2172 to schedule your one-on-one demo with a Rapid Learning Specialist.