BAME and #BLACKLIVESMATTER

The silent threat of unconscious race discrimination in the workplace

28 September 2020

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.

 

Latest blogs & news

Kingsley Napley wishes our Muslim Community Eid Mubarak as Eid al-Adha is celebrated around the world.

Whilst our Muslim colleagues and friends celebrate over communal meals and prayer, it is also a time for us at Kingsley Napley to reflect on the importance of observing and respecting the cultural and religious differences of others. We are motivated to make Kingsley Napley a place which is not only diverse, but also inclusive, where all our people feel able to bring their true selves to work.

Disciplining an employee for posting racist comments online

We have seen examples of people being ‘outed’ for posting racist comments online by individual bystanders who have been able to find their LinkedIn profiles and then contact relevant employers calling for the employee in question to lose their job.  Unfortunately, this is nothing new. But what can an organisation do in these circumstances, if it wants to demonstrate that it stands against racism and discrimination?

Back to the workplace – the new guidance and key considerations for employers

With lockdown restrictions moving to “Stage 4” of the Government’s roadmap to recovery, one of the key questions will be what this means with regard to returning to the workplace and, in a recent article, we considered the rights of employees on this issue.

Law firm partner’s profit share allocation was a reasonable exercise of discretion

Most disputes between partners of professional services firms are settled either through confidential negotiations or arbitration.  A public resolution of the matter through a full hearing and reported judgment is a rare occurrence. A recent example of such a case involving an ex-partner of a law firm is a useful reminder that it is difficult to challenge profit share or bonus decisions as an irrational exercise of discretion.

Regulatory compliance, trust and confidence in the financial services sector

In a case that attracted national media coverage and emphasises the crucial importance of regulatory compliance and the highest standards of professional conduct in the financial services sector, the High Court dismissed a breach of contract claim brought by an investment manager.

Your legal rights on returning to the office in the UK during COVID

So the Prime Minister has announced that most restrictions in place due to the coronavirus pandemic will be lifted on 19 July, despite acknowledging that the pandemic itself is far from over and that case numbers are expected to continue rising.   

 

Drag queens and activism: a story of political realness

When I told some of my friends I was writing a piece about drag activism, their reaction was almost unanimous… 

"Oh, but, is there much to say?" 

That's when I realised that drag queens, for many, are more synonymous with big hair and lip-syncing  pop hits rather than political consciousness and activism. You can certainly understand the reason for this - we have been totally spoiled in recent years with the explosion of Ru Paul’s Drag Race around the world - the make-up, talents and confidence being a feast for the eyes (and the soul). But we cannot minimise the political importance of Mama Ru’s creation. Who could forget numbers such as “Shady Politics”; the discussions of gay conversion therapy while applying make-up; and Bob the Drag Queen describing his arrest during a 2011 marriage equality protest? Not to mention Nancy Pelosi sashaying into the All Stars season…

Leading the way: it’s time for action on pregnancy loss

In recent weeks, it has introduced a formal workplace policy providing paid time off for all staff who are directly or indirectly affected by pregnancy loss. This is not only a significant enhancement to the provisions required by law but is also, I understand, the first of its kind being put in place by a UK law firm. We hope other firms in our sector and beyond will follow suit and normalise protection in this space, thereby supporting the wellbeing of those affected and protecting talent.

Coming out? How to support your friends and family members when they come out to you.

Coming out is an extremely personal journey and will be unique to each person. It takes a lot of courage to come out and a person may have to repeatedly do this in their personal and professional lives. Statistics show that 46% of people who identify as lesbian, gay and bisexual and 47% of people who identify as trans feel comfortable to discuss their orientation or gender identity.

When the arch of the rainbow actually casts a shadow on you.

How can you put the spotlight on intersectionality to remind others that, even within the LGBTQ+ community, not everyone is treated equal?

Are you proud of who you are, your journey and the person that you’ve become? Do you truly wear your heart on your sleeve? For some, being open and honest about who we are (which includes our gender identity or sexuality) does not come easily and can be extremely hard. It can be even tougher at work, and for those that hide their true self, the energy expenditure is endless. That survival cost of energy makes you less productive, or even worse still, it has a detrimental impact on your mental and physical health.

The Conversations That We’re Forgetting to Have

I am a trans woman who has recently embarked on her transition. Having only taken my first steps on this journey, I am acutely aware when writing this that I have much to learn about myself, about being trans, and about the diverse LGBTQ+ family that I now find myself part of. However, there is one theme that I feel is important to discuss as we celebrate Pride in 2021.

Three years on, the UK Government is still ‘’dragging its feet’’ about banning gay conversion therapy.

Following on from my colleague Sameena Munir’s blog ‘’pray the gay away: cull conversion therapy worldwide’’, the issue of gay conversion therapy dominates contemporary conversations surrounding LGBT politics and legislation in the UK, but the Government has failed to deliver on its promise to ban it.

"They will say I’m pushing an agenda. But the truth is, I am.” - The rise of queer artists and the importance of visibility

For two weeks during Pride month, Kingsley Napley are publishing a series of blogs to celebrate Pride and highlight LGBTQ+ issues from home and abroad.

It’s been 9 years since R&B artist Frank Ocean headed off rumours about his particular pronoun usage in the album Channel Orange by posting on Tumblr that his first love had been a man. Since then, the momentum for the openness and success of queer artists has continued to gather pace, and LGBTQ+ representation in the arts and mainstream media is as wide as it has ever been. This rise has however raised important questions about pigeonholing queer artists, and perhaps most interestingly whether they must always shoulder the responsibility of ‘pushing the agenda’.

Visibility, Unity and Equality: out and proud in the legal sector

In February this year, I attended a virtual talk held by the InterLaw Diversity Forum for LGBT+ History Month. The speakers featured individuals working in the legal sector and each discussed their experience of coming out as trans or non-binary at work. It feels an apt lesson given this year’s Pride theme: Visibility, Unity and Equality.

Things not to say to same-sex parents

In January 2020, I was fortunate enough to give birth to a beautiful, healthy baby boy.  As far as I know, I am the first partner at Kingsley Napley (although certainly not the first employee) who has a baby who is lucky enough to have two mums.  News of my pregnancy was met with overwhelming support from my colleagues.  That support continues to this very day, and my wife and I remain truly grateful for the kindness that has been shown to us.  However, since falling pregnant I have learnt that not all workplaces are as supportive to same-sex parents as mine.  The concept of two mums or two dads starting a family is something that some people still struggle to get their heads around.   So this year, for our KN Pride blog series, I have decided to explain the questions, that speaking from my own experience, it is not helpful to say to same-sex parents.

Our diversity journey and where we want to REACH

We have newly renamed our network to the Race, Ethnicity and Cultural Heritage (REACH) group. Our REACH network is a space where we come together to work towards fostering and maintaining an inclusive workplace, where we can all reach our full potential without fear of discrimination.

How wide should an investigation into bullying claims be?

When deciding whether to focus on the discrete allegations or look beyond them, employers need to balance confidentiality with duty of care to employees, says Mark McWilliams.

Positive representation in law

Satvir Sokhi was recently invited to speak and take part in Leeds Beckett University’s Law Enrichment session which allowed a panel of ethnically diverse professionals to speak to students about our experiences with diversity and inclusion within the legal sector.

Disciplining staff for misconduct outside the workplace

Employers need to show the individual’s behaviour clearly affected the organisation’s reputation or their colleagues, says Catherine Bourne.

What are my rights on returning to work after a spinal cord injury?

According to the most recent NHS statistics 2,500 people are injured or diagnosed with a spinal cord injury every year. Indeed it is estimated  that there are a total of 50,000 people living in the UK with a spinal cord injury of some sort. Unfortunately sustaining a spinal cord injury impacts on every aspect of a person’s life. Often, where everyday tasks are a challenge, returning to work may seem unrealistic. The fact is that employment rates among people with spinal cord injuries remain much lower than the general population.

R.E.A.C.H. & Allies bulletin board

R.E.A.C.H. & Allies bulletin board

Positive representation in the tech industry with Ash Cooper

In this podcast episode of KN BAME Talks for Black History Month 2020, Ash Cooper, IT Director at Kingsley Napley, talks about positive representation and his career in the tech industry.

Listen to the podcast

Shannett Thompson speaks at Urban Lawyers Careers Conf​erence November 2019​

Urban Lawyers works to makes the law more accessible as a career to marginalised groups and improve social mobility and diversity in the legal profession.​

View Urban Lawyers CC 2019 site

Film screening of The Hard Stop

Attended by KN employees and the Stop and Search Legal Project.

View SSLP's site

Intersecti​onality P​​er-spective - Celebrating Black History Month

Kingsley Napley's BAME and LGBTQ & Allies networks hosted a series of talks at London's Arboretum on 16 October 2019. The focus of the event was to open up the conversation about intersectionality, whilst shining a light on the progress of Black History Month in Britain. The speakers were Charles Irvine, Anthony Francis, Debo Nwauzu and Dr S Chelvan.

INTERNATIONAL WOMEN'S DAY 2020: BAME heroines who exemplify #EachforEqual

Drawing from the strength of shared experiences, women around the world have been uniting in common struggles such as sexual and domestic violence, pay inequality, reproductive autonomy and climate change. While great leaps forward have been made and women-led movements have been gaining unprecedented attention and support , minority ethnic women are often left behind as these struggles are compounded with the intersection of their race/ethnicity and gender.

View blog post

BAME webinar: Challenges faced at work

Recorded Monday 3 December 2018.

View webinar

Holocaust Memorial Day 2020: “Stand Together”

Holocaust Memorial Day, on 27 January 2020, will mark 75 years since the liberation of Auschwitz, where more than a million people perished in gas chambers, most of them Jews. The day is internationally marked in remembrance of the victims of the Holocaust and other appalling acts of genocide, including later atrocities in Cambodia, Rwanda, Bosnia and Darfur, and to recognise that the lessons of the Holocaust are still relevant, especially at a time when racism and extremism is on the rise across Europe.

View blog post

BAME book club: The Good Immigrant

Our most recent book is by Nikesh Shukla.

Kingsley Napley Diversity and Inclusion Statistics 2019

Download report

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility