The silent threat of unconscious race discrimination in the workplace

Throughout recent events which have seen an increased awareness of the Black Lives Matter movement and issues of race equality, there has been a lot of discussion around our biases and how we can all do work to unlearn the negative stereotypes that occupy our minds and affect how we see and react to others. Most people know that conscious acts of overt racism in the workplace are unlawful and, thankfully, such occurrences are rare.  But what about the less obvious and sometimes unconscious discriminatory behaviours in the workplace? What are they?  What problems do they cause and what steps can we take to overcome them?

What is unconscious bias and what is its effect?

Unconscious bias relates to social stereotypes that we hold about groups of people outside our conscious awareness. These are often incompatible with our conscious values, however, they still affect our thought processes and the decisions that we make, especially when making quick decisions.

There are various categories of unconscious bias.  Those most relevant to the workplace include:

• affinity bias: where one feels an affinity or connection with another person because they have had similar life experiences to them. They may have been to the same university, or grown up in the same area, or they may even know one of the parents/family members of the other person. Affinity bias can easily lead to favouring someone – for recruitment or promotion, for example - purely because they are more like you; and
• confirmation bias:  where one draws conclusions about others and their situation based on their own personal beliefs and biases and look for behaviours/traits which ’confirm’ those biases.  For example, a person may form an initial view about a job applicant based on attributes irrelevant to the role they are applying for (their name, where they live or which school they attended, for example).  Those opinions follow through into the interview and later stages of the recruitment process and may result in the interviewer steering questions and interpreting the answers given in a manner that confirms that initial (biased) opinion.

These biases can impact negatively on any minority group and in any scenario but, focussing on race and the employment context here, they can form a barrier to having a diverse workforce and inclusive working environment.  This in turn can result in a loss of talent for employers as BAME employees (if they make it through the recruitment process in the first place), may not feel comfortable in the workplace, or feel that their identity and heritage may prevent them progressing within the organisation.

Ensuring you have a diverse workforce is best achieved by making sure that decisions about recruitment and promotion are made by a diverse group of people.  If all of the senior members of staff, Human Resources (HR) department and decision-makers in an organisation are from a similar racial, ethnic or socio-economic background, there is a much higher risk of unconscious bias occurring and causing a barrier to diversity and inclusion in the workplace generally.  It is therefore important to ensure diversity at all levels in an organisation and, at the very least, to educate all staff about unconscious bias.

What are micro-aggressions?

Micro-aggressions are brief and common -verbal, behavioural, and environmental indignities, whether intentional or unintentional (sometimes even well-meaning), which communicate hostile, derogatory, or negative slights and insults to the receiver of those comments.

One example of a micro-aggression which often occurs in the workplace, is making sweeping generalisations about black people or other ethnic minority groups, or not “being able” to tell people of a certain ethnic group apart.  

Turning to another example, it is common for BAME people to be asked where they are from.  If/when the person being questioned states that they are British, or from London (for example), this often leads to further questioning, the undercurrent being that the first answer given is not adequate or accurate.  The initial question is usually posed to enquire about the heritage of the BAME person and could be entirely innocent.  Some may ask this question believing that they are showing a genuine interest in the individual.  However, it is a question often loaded with negativity.

The first issue is that the question may indicate to the receiver that the asker perceives them as “other” and that because they are not white, they are not “from here”.  This in turn can have the effect of the recipient of the question feeling that they do not belong, or are not accepted.  From personal experience, I will often be asked where I am from, to which my response is, Leeds. The asker often repeats the question in various tones (and the situation can become uncomfortable), until I finally explain that my mother’s parents are Polish and my father is Iranian. In short, my “Britishness” is not accepted, and therefore I have to clarify my answer to the asker’s satisfaction.

Such questions could be asked with innocent intentions, but given how they can be perceived and the negative impact that may have, one should think twice before asking them.  If you have a genuine interest in someone’s ethnic origin, before asking about it, consider whether it is relevant or appropriate in the context.  This can be particularly problematic in the workplace, especially if – as is often the case - those questioned are all of BAME origin and the white people in the room are not asked anything similar. In those circumstances, the people questioned may immediately feel that they are being singled out and a statement is effectively being made to them (and everyone else in the room), that they are different or do not belong. 

Another example of a micro-aggression that may occur in the workplace is commenting on, with surprise, a BAME person's articulateness.  Although seemingly a compliment (and may indeed be intended as such), this comment demonstrates that the commentator may have been affected by the negative stereotype that BAME people are less educated and less well-spoken than white people.  Again, this micro-aggression acts as an immediate indication that the asker sees the BAME person as different/other. Furthermore, this micro-aggression can act as an unnecessary and offensive reminder to the BAME person of the statistical truth that BAME people are starkly underrepresented in certain professions and senior positions. This is not due to natural ability or talent, but is a result of the cumulative effect of social and economic disadvantage which members of BAME communities are disproportionately affected by, as well as the effects of unconscious bias in employment practices. 

Is this unlawful discrimination?

For the reasons already mentioned, unconscious bias and micro-aggressions can act as a barrier to BAME people making it into a workplace in the first place.  However, they can also create a negative and uncomfortable environment for those that are there and prevent progression.  This clearly translates into the culture of the organisation.

Although subtle – and more difficult to identify – unconscious bias and micro-aggressions are no less serious than overt racism.  

The Equality Act 2010 protects people from direct and indirect race discrimination, harassment and victimisation because of race.  If one employee discriminates against another, the employer will be liable unless it has taken reasonable steps to prevent such conduct from taking place.  The offending employee may also be personally liable for their actions.

Harassment, victimisation and, possibly, indirect discrimination are the most relevant possible claims in the context of unconscious bias. 

Harassment occurs where a person engages in unwanted conduct towards another related to race, which has the purpose or effect of violating that person's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them.  Micro-aggressions – perhaps even in the form of banter and inappropriate use of language – can amount to subtle forms of bullying.  The discomfort and intimidating environment this can cause can clearly fall within the definition of harassment and leave the employer (and perpetrators), exposed to claims. 

Victimisation occurs where a job applicant or employee is subjected to a detriment because they have made or intend to make a complaint of race discrimination.  This can occur where an individual calls out what they deem to be inappropriate language or behaviour but is then subjected to detrimental treatment, perhaps by being accused of being “too sensitive”, or “a trouble-maker”.  They may even be overlooked for promotion or given negative feedback about their people skills in their next appraisal as a result of their complaint.  This can be particularly sensitive in situations where the perpetrator is in a more senior position than the person making the complaint.  

How to address the silent threat

So what can employers and individuals do to address the silent threat of unconscious bias in the workplace?  Here are some ideas:

How is your organisation doing? Ask your employees how they feel about the workplace environment and how inclusive it is.  This can be done by sending out surveys to staff which may be completed anonymously.  Exit interviews and feedback forms are also a good way of obtaining information from individuals regarding perceived issues on equality and diversity and identifying any problems.  People who are about to leave may be more open than those still working for the company and, seeking their feedback may assist in addressing issues to prevent further loss of talent because of issues linked to discrimination.

Training and beyond: Raising understanding and awareness through suitable equality and diversity and unconscious bias training is a great place to start – and indeed vital to have at all levels of the organisation - but training alone will not drive change.  Having an internal group or employee committee dedicated to tackling racism and promoting diversity and encouraging conversations about race can make a real difference to the culture within a workplace. It is important that any such group is positively promoted within the organisation and supported by senior management.

Encourage people to speak up:  Employees should be encouraged to speak up against racism and to raise concerns in accordance with the relevant internal policies and procedures of the employer (anti-bullying and harassment policy, for example).  Any such allegations or complaints should be taken seriously and addressed fully to give employees confidence that their concerns will be properly addressed if they come forward.  It is also particularly important that white employees call out racism and inappropriate behaviour or language in support of their BAME colleagues.  As recent commentary on racism has been emphasising, not being racist is not enough to challenge the status quo; it is important for there to be BAME allies who are actively anti-racist and speak up, as it is that that will drive change.

Recruitment: Many organisations have already taken to operating name blind and university blind recruitment processes. This is a good way of minimising the risk of unconscious bias in recruitment so that jobs are offered based purely on merit and suitability for the role.  Positive action can also be utilised to help employers work towards a more diverse workforce and better BAME representation, although this is not without its challenges (as explained by our colleagues, Nikola Southern and Clodagh Hogan in their recent blog on positive action). 

Personal work: Everyone has a part to play in tackling the silent threat of unconscious bias.  Employees should be encouraged to educate themselves on unconscious bias, micro-aggressions and issues regarding race and equality.  Education can mean reading, watching documentaries and, at the most basic level, listening to the thoughts and experiences of BAME colleagues with regard to such matters and thinking carefully before saying something that may cause offence (albeit inadvertently).  Employers can help by encouraging discourse and sharing reading lists and information.

It is natural for people to find it easier to relate to those who are most like themselves or who come from similar backgrounds.  However, we also have something to gain from creating a diverse work environment where everyone feels supported and encouraged.  It is therefore important to ensure that the silent threat of the unconscious bias that may exist in a workplace or its processes are identified and challenged, not only to minimise the risk of legal claims, but also to make sure that they do not hinder progress towards a diverse, inclusive and, ultimately, happier and more productive workforce.

Our Black Lives Matter/BAME blog series

As a firm, we have had many discussions about Black Lives Matter and how we can make a difference to the movement. We wanted to do more than just put out a statement of support, we wanted to take substantive action to address the inequalities faced by Black people and other ethnic minorities. Over the coming weeks, we will be publishing a series of blogs from our varying practice areas highlighting what we are doing, how you can make a difference and shining a light on the issues.

Our Diversity and Inclusion group is working hard with Human Resources and the Management Team to effect change through methods such as training and reviewing recruitment practices.  We have implemented a lot of change but we recognise we have more to do and we are always looking to make improvements as a firm.  We all have respective roles to play in advocating for issues of inequality and we hope our blogs give you some inspiration as to how you can make a change.

Further Information

If you would like any further information or advice about the issues explored in this blog, please contact Nadjia Zychowicz or another member of our employment team.

About the authors

Nadjia has versatile experience supporting corporate and education sector clients as well as senior executives in a broad range of employment law matters.

Özlem is very experienced in giving training talks on topical employment law issues and, as a member of the Employment Lawyers' Association (ELA), has participated in preparing ELA’s response to Government consultations on various issues.