In the wake of the #MeToo movement and the murder of George Floyd, the country has become increasingly cognizant of, and tried to respond to, societal inequities through the diversity, equity, and inclusion (DEI) movement.  One of the results of that movement is the increased understanding that bias is often innate and subtle, even subconscious, and not necessarily manifesting in racial slurs but in other, harder to discern ways. 

Implicit Bias in the Workplace

This realization impacts the workplace in important ways, as more and more people complain of “implicit bias” and “microaggressions” -- the subtle but equally pernicious ways that discrimination manifests.  However, the problem with investigating this form of discrimination is just as the name indicates – it is implicit, sometimes not even realized by the person who is doing it. A classic example is the person who claims they, “don’t see color,” meaning to attest to that person’s complete lack of racism.  But what the phrase arguably does is discount the experience of non-white people who know that the color of their skin very much impacts the way they are treated.  This “colorblind” individual is arguably denying non-white people recognition of the very core of their identify, and the experiences they have had navigating the world as a person of color.  All the while this person, usually white, means well.

So, if the bias is implicit, how do you root it out?  Some cases are easier than others, when patterns are revealed that suggest bias is very likely to be a factor in decision-making whether the decision-maker realizes it or not.  But not all microaggressions are alike.  The microaggression of praising an Asian-American person for their good English is arguably a much clearer indication of implicit bias than, for example, deciding not to mentor someone who is African-American.  There are many possible reasons for the latter while the former suggests intrinsic assumptions based on someone’s looks.  A savvy investigator faced with investigating the latter situation might find the respondent had an important, non-discriminatory reason for not wanting to mentor the person in front of them. Still, it is impossible to get inside the respondent’s head and heart and determine what they are feeling and thinking about their potential mentee.  So, while the evidence might suggest that there is no implicit bias, it is hard to know for sure.

Problems with Investigating Implicit Bias

Problem one is obvious: If it’s hard to prove implicit bias, how can you be sure that failing to substantiate an allegation is fair? Conversely, what if you discipline someone or reverse their decision without evidence that discrimination exists?  If you adhere to the idea that it’s better to let 100 guilty people go free rather than to convict one innocent person, the idea of unfairly disciplining someone for discrimination they did not harbor seems particularly concerning.  On the other hand, what about the complainant (the person allegedly subjected to the microaggression or discriminatory behavior)?  If you do not find discrimination, are you invalidating her perspective?  Are you doing the same thing as declaring that you do not see color?  This is not an easy dilemma to solve.

The second problem with implicit bias investigations is that workplaces that are trying to embrace DEI are perhaps overcorrecting in trying to investigate anything that uses certain magic words such as “hostile work environment,” and “harassment.”  This is the case even when the complainant is referring to conduct that they see as “hostile” but has nothing to do with severe or pervasive behavior directed at a protected characteristic or class.

When it comes discrimination, hypervigilance is generally a good thing, but fails to acknowledge that, at least in the investigation realm, sometimes complainants are not the most wronged but instead the most willing to speak up.  Complainants may, from time-to-time, even make allegations as a defensive measure – a reaction to a performance management plan or other disciplinary action.  Investigating such complaints seems like a losing battle when you consider that workplaces do not have unlimited financial or human resources.  Still, if you never investigate how do you know if the complaint does or does not reflect the actual ills of the workplace?

The third problem with investigating these kinds of matters is that complainants are not generally agnostic about the results of their investigation.  I have yet to see a single time when a complainant, hearing their complaint was not validated, accepted that result as possibly fair.  Knowing that an investigator has a much broader swath of data to pull from and is privy to much more information than the complainant does not affect their certainty.

For example, I was on a call recently with a high-level, brilliant executive who had made a complaint of implicit bias when she was denied a promotion in favor of a white candidate. We could not substantiate the complaint for several important reasons, though we did find that the supervisor could improve in becoming a more inclusive leader overall.   The complainant commented to me (in another, unrelated investigation) that the findings of her own investigation were “wrong” and scoffed at the finding that the leader could be more inclusive as useless.   To be sure, it is absolutely possible that we made the wrong finding in that investigation and that our own biases impacted us.  I certainly understand the tendency for someone to think that.  But I am surprised, again and again, by the absolute certainty of complainants that their point-of-view is the correct one, even in workplaces that see DEI as a top priority and take real action to realize social justice.  After so many years of conducting investigations, one starts to realize that the idea of “truth” is often nebulous, and that many narratives about the same issue may all have validity.

This certainty in “being right” may reflect a recent trend to throw away the debate on the issue of whether something is or is not discriminatory so that one person’s narrative – usually the person who uses the most loaded language – wins.   Also concerning is that when someone claims victim, an equal and opposite “perpetrator” is assumed, despite not knowing the latter’s true motivation or even his/her/their own identity as a person who has been oppressed in a way that is not visible to the naked eye.  I think of a recent case I investigated where a white male teacher that was quite committed to the DEI movement was accused of sexism when he stated that women, particularly young women, were often disempowered.  While he meant to validate the perspective of the women around him (who often lamented their lack of power), he was instead seen as reflecting his own views on women’s innate power. What angered him is that his accuser fixated on his status as a white male and completely disregarded the incredible hardships the respondent faced growing up while the complainant (his accuser) had tremendous financial and educational privilege.  The respondent felt he was not being seen for who he truly was and instead was pigeonholed into an identity that did not fit.  I find this trend disheartening at best, and scary, at worst, as it’s the kind of dualistic thinking that created and perpetuated racism in the first place.

The paradox is that we’ve arrived at a place where people can speak of the experience of “microaggressions” and other more subtle discriminatory behaviors as unacceptable and demoralizing.  We can turn inward and find our own socialized racism/sexism/homophobia, etc. We can see that gender is not a duality.  And yet, we are still so often turning and pointing the finger—declaring an “us” and a “them”—and are unwilling to question our own narrative about situations to make sure we are being fair and just. 

When we refuse to challenge our own narrative, we fall into all kinds of traps, including identifying completely as a victim and losing sight of the empowerment that might exist in those situations where we do have an ability to change the outcome.

Possible Solutions

To be clear, I am not advocating that we not call out social injustice or investigate more subtle claims of racism.  I think doing so is essential in order to keep rooting through all the different ways that racism can manifest.  But I am also advocating that when we call out others by using terms that wield tremendous power we do so while simultaneously recognizing the possibility that another narrative on the situation might also be true.  

I also suggest that we consider when other, less traditional ways of dealing with unconscious bias than the traditional investigation model might be useful. For example, while it has traditionally been a best practice for an investigator not to make recommendations for how a company can address the problems she finds, perhaps that’s a practice that needs to change when looking at implicit bias so that the results of an investigation are not a zero-sum game.  Investigators may still identify ways that a workplace can improve its inclusivity quotient even (and especially) when bias isn’t substantiated.

Likewise, perhaps the complainant and respondent need to engage in a mediated conversation to understand the other’s point of view and so the complainant can feel heard even if her allegation is not sufficiently supported by evidence.  Finally, the investigator may find that when substantiating a complaint of implicit bias is not possible, a company need still consider a process of restorative justice so that healing can occur.

As our awareness of bias evolves, so should our methods of rooting out and dealing with that bias.  While investigations are an excellent way of doing so, we must hone our old methodologies and consider what more is called for in the investigative process in order to keep pace with evolving sociological insights.

Please send me your ideas and thoughts.

Author: Diana Maier, Partner.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.