Legal

Tackling unconscious bias and microaggressions at work

30 Oct 2020 By Nadjia Zychowicz

Subtle and difficult to identify forms of racism can pose just as big a legal risk as more overt kinds, if not greater, warns Nadjia Zychowicz

Most people know conscious acts of overt racism in the workplace are unlawful. But the greater risk is the less obvious and sometimes unconscious behaviours that may make an environment discriminatory. 

Unconscious bias  

A first step is understanding unconscious bias, whereby social stereotypes we hold outside our conscious awareness affect our thought processes and the decisions we make. This may include affinity bias, where someone feels a connection with another person because they have had similar life experiences to them. It can lead to favouring someone over others for recruitment or promotion, for example.  

Confirmation bias is another issue. It happens where, for example, a recruitment manager draws conclusions about applicants based on their own personal belief system and then looks for behaviours and traits during the interview process that ‘confirm’ those biases.   

Microaggressions 

Microaggressions are a further type of biased behaviour that can contribute to someone feeling they do not belong or are not accepted in the workplace. These 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 the comments. An frequently occurring example is where an ethnic minority person is asked where they are from, and then questioned in detail about their parents’ heritage if the initial answer is that they are British.  

Is this unlawful discrimination? 

Potentially, yes. The Equality Act 2010 protects people from direct and indirect discrimination, harassment and victimisation because of race. Microaggressions – perhaps in the form of ‘banter’ and inappropriate use of language, which result in an employee feeling the work environment is hostile to them because of their race – can amount to subtle forms of bullying and harassment.   

Victimisation can occur where a job applicant or employee is subjected to a detriment because they have made a complaint of race discrimination and are then labelled ‘too sensitive’ or ’a trouble maker’. Situations where the perpetrator is in a more senior position than the person making the complaint can be particularly difficult.    

The bottom line legally is that if one employee discriminates against another, not only is the offending employee personally liable for their actions, the employer may also be liable unless it has taken reasonable steps to prevent such conduct from taking place. That is why subtle and more difficult to identify unconscious bias and microaggressions are no less serious than overt racism, and why organisational culture is the holy grail for preventing these.

How to address this silent threat 

It is not sufficient to promote the importance of diversity in the workplace without taking steps to tackle the deeper threats that exist. These steps should include: 

  • Ensuring decisions about recruitment and promotion are made by a diverse group of people – consider moving to name-blind and university-blind recruitment processes if you haven’t already.

  • Rolling out training for staff generally about unconscious bias and encouraging people to educate themselves about how this works. Ensure this is introduced from the top and endorsed by senior leadership. 

  • Sharing articles, commentary and research on diversity and inclusion and the positive impacts this has on business.  

  • Setting up a visible, properly functioning and supported internal group/employee committee dedicated to promoting an inclusive culture in your organisation and encouraging conversations about race, which can make a real difference to culture long term. 

  • Undertaking an anonymous employee survey to find out how your staff really feel about the workplace environment and how inclusive it is. Exit interviews and feedback forms are also a good way of obtaining information. Act on the findings.

  • Encouraging people to speak up. Take allegations or complaints about discriminatory behaviour seriously. 

  • Ensuring ethnic minority allies at management level are actively anti-racist and will be vocal to help drive change and challenge the status quo.

  • Considering signing Business in the Community’s Race at Work Charter as a way of demonstrating your organisation’s commitment to workplace racial equality.

All will gain from the creation of a diverse work environment, where ethnic minority talent is recruited, nurtured and retained, rather than culture being approached through the prism of satisfying quotas and minimising legal risk. It is critical for employers to embrace diversity and inclusion; that is the best and only way to minimise legal risk.  

Nadjia Zychowicz is an associate in the employment team at Kingsley Napley

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