“Unconscious Bias” and “Conscious Exclusion” in New Jersey Employment Discrimination

Unlawful sex discrimination takes many forms in New Jersey workplaces. Overt discrimination, such as when an employer directly states an intention not to hire individuals of one gender, might not be as common as it once was, if only because it is less socially acceptable in the 21st century. It persists, though, in both blatant and subtle forms. Sex discrimination can also occur when a policy or practice disproportionately affects people of one gender, even if the employer has no intent to discriminate. The Harvard Business Review (HBR) recently published a study that examines these two forms of sex discrimination, calling them “conscious exclusion” and “unconscious bias.” The study offers some useful observations for New Jersey workers.

Disparate Treatment vs. Disparate Impact Discrimination

Title VII of the Civil Rights Act of 1964, as interpreted by the courts and the Equal Employment Opportunity Commission (EEOC), bars employers from engaging in disparate treatment based on a protected category. It also bars them from maintaining policies or practices that have a disparate impact on employees in a protected category. The New Jersey Law Against Discrimination has similar provisions.

“Disparate treatment” consists of overt acts of discrimination and other acts or omissions that directly affect someone based on their sex or another protected category. Examples include refusing to hire someone because of gender, promoting employees of one gender over employees of another without regard to qualifications or merit, and the various forms of sexual harassment.

“Disparate impact” can be more difficult to spot. Suppose an employer has a policy that disproportionately affects female employees or job applicants. This policy could violate federal or state antidiscrimination laws if it has no reasonable relationship to the job, even if the employer had no discriminatory intent at all. A settlement announced by the EEOC a few years ago provides an example. The employer subjected job applicants to physical strength and endurance tests as a condition for jobs that did not require strength or endurance. The EEOC alleged that this had an unlawful disparate impact on female applicants.

Conscious Excluders and Unconscious Bias in the Workplace

The HBR study focuses on “conscious excluders,” which it defines as people “who despite various corporate interventions, continue to treat some folks differently due to their social group membership.” These individuals are “often highly influential” with regard to hiring decisions.

The study gives examples of conscious excluders:
– A male professor who does not invite female students or employees to important networking functions; and
– A business owner who will not hire young women out of concern that they will leave as soon as they get pregnant.
While the “excluders” might not state their reasons openly, they could arguably be engaging in disparate treatment discrimination.

Training for unconscious bias in the workplace, the HBR notes, tends to focus on promoting workplace diversity and avoiding disparate impact discrimination. This “work[s] particularly well for employees who are already less biased,” but might not have much effect on conscious excluders. The HBR offers recommendations for employers, including adopting a clear definition of “exclusion” and making inclusion a specific goal of the organization.

The employment attorneys at the Resnick Law Group represent employees and job applicants in New Jersey and New York in claims for sex discrimination and other violations of state and federal law. To schedule a confidential consultation to see how we can help you with your case, please contact us today online, at 973-781-1204, or at 646-867-7997.

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