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8 Tactics to Roll Back Racial Bias at the Office

HR Column

Editor's note: This article was originally published for Black History Month. In light of George Floyd's tragic death and the ensuing worldwide protests against police brutality, ACC Docket is republishing this article now to address how in-house counsel can prevent systemic racism and foster an inclusive environment in their workplace.

February is Black History Month in the United States. US President Barak Obama described it thus:

"During National African American History Month, we recognize champions of justice and the sacrifices they made to bring us to this point, we honor the contributions of African Americans since our country's beginning, and we recommit to reaching for a day when no person is judged by anything but the content of their character."

The #MeToo and Time’s Up movements in the United States demonstrated that while great strides have been made to open doors for women and minorities, significant work lays ahead to equalize the playing field for all Americans. Issues critical to achieving racial equality include police ethics, the income gap, equal access to high quality education, employment discrimination, workforce diversity, and the impact of redistricting and voter ID requirements on voting rights. In this article we address racial bias, which impacts all aspects of the employment continuum from hiring, pay, promotion, and overall retention of people of color.

Different faces of racial bias

According to the Psychology Today, racial bias is the act of holding prejudices against someone based on their race. Racial bias can take various forms, so let’s understand the distinctions:

  • Explicit bias – expressed intolerance that is based on race, gender, religious, political, or social views that generate aversion in one person towards another.
  • Implicit bias – implied or unspoken prejudice that can manifest in the implementation of company practices that have an intended or unintended discriminatory impact on a group of people. Examples include requiring a college or higher-level degree, administering screening tests, or refusing to hire individuals with felony convictions.
  • Unconscious bias – negative perceptions that unknowingly stem from stereotypes or personal experiences. In an organization, unconscious bias manifests in the stricter standards hiring managers may apply to minority job candidates, or in what may feel like fair assessments of employees in a reduction in force, until the statistics demonstrate an inexplicably higher impact on minorities.
  • Internalized bias – acceptance of bias by the targets of that bias. Internalized bias can manifest in forms of self-hatred against one’s own race, family, social groups, or national identity. A minority hiring manager who consistently declines candidates of their own race or ethnicity may be displaying internalized bias.
  • Externalized bias – cultivating deep hostility or hatred for systems, tenets, and actors of one’s perceived oppression. Operating on the societal periphery, externalized bias can manifest in violence and rage, such as terrorism and violent extremism.

Practice tips

Racial bias prevents a company from leveraging the full potential of its entire workforce. Studies have long demonstrated the financial benefits of a diverse workforce. With the authority and legal tools to support the company’s commercial objectives while steering leaders, managers, and supervisors clear of potential claims, in-house counsel are uniquely positioned to provide the right guidance and challenge bias. Follow this guide to prevent racial biases at your company:

1. Take an implicit bias test

Maintained by Harvard University, this test exposes implicit biases that exist outside the consciousness in categories such as race, gender, gender identity, weight, and religion. If your results denote a bias, don’t be dismayed. Now you can consciously ensure that your bias does not manifest in the administration of your work responsibilities.

2. Stand up

Renowned motivational speaker Zig Ziglar said, “You've got to be before you can do and do before you can have.” For your company’s inclusion efforts to stick, choose a philosophy of inclusion and exhibit it in your thinking and the guidance you give your company.

3. Examine company policies

Critically examine your company policies and their enforcement for unintentional yet disparate outcomes. For example:

  • Is the educational requirement “job related and consistent with business necessity,” or is it a ‘nice to have’ when equivalent experience is sufficient?
  • Is the job screening tool truly neutral, or does it make the most sense to candidates who possess a particular cultural, economic, or racial paradigm?
  • Despite your company’s best intentions, do the test statistics reveal a disparate pass/fail rate between certain groups?

4. Address felony convictions

Use the three-part test recommended by the US Equal Employment Opportunity Commission (EEOC) in determining whether to hire a candidate with a criminal conviction.

5. Address double standards

In considering a minority candidate, if a manager emphasizes the need for the candidate to be “qualified,” while suggesting it would be a “stretch role” for an unqualified white candidate, unconscious bias might be at work. If, despite a minority candidate demonstrating all objective criteria required for a job, the hiring manager still has unspecified “concerns.”

6. Examine your preferences

If your year-end bonus were dependent on the racial, cultural, and ethnical balance of your direct reports, would you receive 100 percent payout? Would you resort to the “I can’t find qualified minority candidates” mantra as an excuse? If so, scrutinize your practices.

7. Have the courage to ask

We see this failure in advertising all the time: A company releases an ad and is blindsided by negative backlash for a what appears to be (in hindsight) an obvious bias failure that threatens the product’s revenue as consumers vow boycotts. Have the courage to ask those affected, and foster an encouraging environment that welcomes sincere feedback.

8. Check your language

If your coworker refers to the black employees sitting together in the cafeteria as a “gang” or some other derogatory term, address the language of bias.

Parting thoughts

Undoing racial biases, whether implicit or unconscious, is an arduous challenge for one person, let alone an entire society, to undertake. And though you might not be able to change the world, you can do your part to improve working conditions for minorities in your company.

About the Author

Spiwe L. JeffersonSpiwe L. Jefferson is general counsel of ChristLight Productions Ltd., LLC, Patron Fellow of the American Bar Foundation, and board secretary and legal advisor to The BrandLab. She is a member of the ACC employment and labor, law department management, and litigation sections.

The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.