When words used in a disciplinary report suggest implicit bias

by Barbara J. Koenig

Implicit bias is an unconscious preference for or an aversion to a person or a group of people. In other words, we may have an attitude toward others or stereotype them without conscious knowledge of what we’re doing. If we act in accordance with our implicit bias, we may be discriminating against a person or a group of people without even being aware of our bias. Two recent cases illustrate the fact that HR managers need to educate supervisors on implicit bias and how a seemingly straightforward description of an employee or a workplace incident can suggest racial animus and unconscious discrimination.  Bias

Seemingly innocent words suggest bias

In recent employment discrimination cases, two federal courts, one from Illinois and one from New York, looked at the words used to describe employees’ shortcomings and found they could imply their supervisors held racial stereotypes. Both cases were in the initial stages of litigation. The first case has now been dismissed, and the second case received court approval to proceed with the employee’s complaint. However, what’s interesting is that both courts recognized that seemingly innocent words can suggest racism in the right circumstances.

In the Illinois case, a black employee was written up several times and eventually fired when she didn’t meet her employer’s expectations. In describing the employee’s difficulties at work, the employer focused on her “anger.” The disciplinary reports about the employee’s workplace conduct included the phrases “became angry,” “got visibly upset and angry,” and “getting angry.” The reports also described the employee as being prone to “outbursts and negative comments” or getting offended and failing to defuse situations with coworkers or customers.

The disciplinary reports weren’t unusual; it was the court’s concern that was unusual. The court recognized the long history of the stereotype of angry black women, tracing its roots back to slavery. The court mentioned academic studies about the continuation of the stereotype and its detrimental impact on black women, inside and outside the workplace. According to the court, “When a word or concept is so pervasively and enduringly linked to a derogatory stereotype, its use to reference individuals traditionally subject to the stereotype inherently raises the specter of motivation or bias.” In the end, the complaint was dismissed, but the court’s musings on racial stereotypes caught the attention of lawyers across the nation. Young v. Control Solutions, LLC, U.S.D.C., N.D. Ill. Case No. 15-cv-3162, June 19, 2017.

The New York case involved a black physician’s assistant supervised by four white physicians. Thomas Wooding alleged that over a several-year period, the physicians criticized his work, belittled him in front of coworkers, yelled at him, called him names, and gave him conflicting orders. The physicians wrote progressively critical disciplinary reports and told Wooding that he was being “disrespectful and overbearing.” He complained to the HR department that he was being singled out for undue criticism because of his race and was facing retaliation by his supervisors. Eventually, he was fired for allegedly violating the Health Insurance Portability and Accountability Act (HIPAA).

Wooding brought a lawsuit alleging discrimination on the basis of his race. What’s interesting in this case is that Wooding argued that the white physicians used code words for race discrimination when they told him that he was “disrespectful and overbearing.” He argued that those words may appear nondiscriminatory on their face, but they can “invoke racist concepts that are already planted in the public conscious.”

The court seemed to agree, noting that whether the speaker was motivated by assumptions or attitudes relating to the protected class would depend on the context in which the words were spoken. As a result, the physicians’ words, among other statements, were sufficient to allow the complaint to go forward. Wooding v. Winthrop University Hospital, U.S.D.C, E.D. New York, Case No. 16-cv-4477, June 12, 2017.

The courts in both cases were concerned about the supervisors’ implicit bias. HR managers may be shaking their heads in disbelief at the courts’ analyses. However, the point of both cases is that even apparently neutral words can be perceived, in the right circumstances, to suggest an employer’s bias toward an employee.

Avoiding a finding of implicit bias

HR managers should train supervisors and managers to use specific words in their disciplinary reports rather than resorting to stereotypes. One good rule of thumb is, don’t generalize. For example, when writing up a habitually tardy employee, don’t say, “She is always late.” Instead, document the specific days and times the employee was late. Or explain that “Susan’s work performance is deficient because she fails to complete her assignments on time and communicate her progress to her supervisor” rather than just saying “her work performance is poor.”

Don’t characterize an employee’s actions or communications with language that might show bias or prejudice. Instead of including personal commentary in your write-ups (“She gave another lame excuse”), document what the employee said even if you find her explanation unbelievable (“The reason she gave for her tardiness was that her alarm clock failed to go off”). Rather than stating, “She started her new assignment with a bad attitude,” provide the specific reason you concluded the employee had a bad attitude or note that “after she was given a new assignment, she failed to pay attention to the details of the assignment.” And don’t use slang (“She escalated the confrontation with her coworkers through her use of derogatory words” rather than “She was really mad at her coworkers and cussed them out”).

If, after several attempts at training, a supervisor continues to include generalities or personal opinions in his write-ups, there may be a reason to suspect implicit bias. While overcoming implicit bias is beyond the scope of this article, the first step toward stamping it out is to recognize it in yourself and others. It’s especially important for HR managers to understand implicit bias and be aware of it in your workplace.

Takeaway

Implicit bias is, by its very nature, an unconsciously held belief. As our world becomes more multicultural, implicit bias bjk head shothas gained academic attention and is beginning to grab the attention of the courts. To avoid allegations of implicit bias that could result in litigation, it’s important to bring awareness of the concept to your supervisors and managers and train decision makers on how to write factual, fair, and neutral disciplinary reports.

Barbara J. Koenig is an attorney with Foster, Rieder & Jackson, P.C. in Albuquerque, New Mexico.  She may be contacted at barbara@frjlaw.com.

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