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Federal Employees News Digest : April 22, 2013
April 22, 2013 Vol. 62, No. 38 5 Visit us on the internet at www.FederalDaily.com Unconscious bias: A threat to diversity lurking in the shadows R ace discrimination has long been viewed as a dark and shady practice, but the Equal Employment Opportunity Commission now appears ready to delve deeper into the shadows as it sets its sights on unconscious bias in the federal workplace. The EEOC's Office of Federal Operations recently released a report by an African-American workgroup that was formed three years ago. The workgroup was tasked with identifying obstacles in the federal workplace that block equal employment opportunities for African-Americans. The workgroup identified seven obstacles, with "unconscious bias" topping the list. Here, the EEOC has identified a threat to diversity that largely operates in the shadows. It tends to lurk in places where it is hard to observe, namely in subjective decisions of hiring and promoting. In fiscal 2011, African-American federal employees raised 990 promotion/non-selection allegations of dis- crimination based on race, according to EEOC data. By definition, "unconscious bias" is "social behavior ... driven by learned stereotypes that operate automatically---and therefore unconsciously---when we interact with other people," according to the workgroup. The workgroup called for an in-depth statisti- cal study on the obstacles it identified, and singled out the need for research on unconscious bias "to determine its prevalence and effects on the federal sector." In its report, the EEOC workgroup stressed that unconscious bias was adversely affecting African-American employees in relation to their ability to ascend to high-level positions. Due to stereotypical views or unconscious bias, for example, it stated that such posi- tions are considered "nontraditional for African-Americans." A 2010 Merit Systems Protection Board report illustrated how grossly underrepresented African-Americans are in the higher echelons of the federal workforce. African-Americans accounted for 18 percent of the federal workforce in fiscal year 2008, but they held only 13 percent of supervisory positions and 8.1 percent of Senior Executive Service positions. The EEOC workgroup suggested that "legal experts must analyze how unconscious bias can be evaluated as evidence of discrimination under Title VII and other federal discrimination laws." This recom- mendation is necessary because much of the focus of discrimination law is on intent and intentional discrimination. As a general precept, for an agency to be liable for discrimination, some intent or motive to discriminate must be present and shown. As the workgroup noted, "[i]t is difficult to prove discrimination motivated by unconscious bias because it is not conducive to current legal analysis." Clearly, when the legal system focuses on intent and motive, and the EEOC workgroup has identified subconscious influences as a major issue, the legal system is lagging behind the type of discrimina- tion currently faced in the workplace. However, this hurdle does not make it impossible to address these hidden influences; it just requires the affected employee to show affirmatively that discrimination exists. In cases of circumstantial evidence, if the employee sufficiently states his or her claim of discrimination, the agency is required to articulate legitimate nondiscriminatory reasons for its actions. Once the agency meets this burden, the employee is required to prove by a preponderance of the evidence that the proffered reason is nothing more than a pretext for discrimination, the EEOC noted in Maxine D. Ruffin v. Secretary of Navy (2001). The EEOC in James A. Claunch v. Postmaster General (1994) found that where the complaining employee's showing of pretext is strong enough, it can support a finding of discrimination with- out affirmative evidence of that motive. This case involved a U.S. Postal Service male training technician who applied for a training supervisor position that the agency awarded to a female candidate. Compared to the selectee, the training technician was far more qualified for the job, and he filed an equal employment opportunity complaint alleging sex discrimination. The EEOC ordered the agen- cy to place the training technician in the supervisor position, saying, his "qualifications were, in fact, so plainly superior to Selectee's that the only reasonable explanation which presents itself for his non- selection is his sex." This case illustrates how there is a roundabout way of acknowledging the existence of some motives that cannot be proven based upon looking at circumstantial evidence. It is the fact that the burden is placed on the aggrieved employee to identify and prove the existence of bias and motives that some- times cannot be seen, and which are rarely acknowledged in today's workplace, that causes the difficulties related to unconscious discrimination identified by the workgroup. These subconscious motives can be addressed, but it does require an advanced legal analysis to do so. The workgroup has also called for a simplification of the evidentiary requirements to identify subconscious motives. Federal employees who believe they have intentionally or unin- tentionally been subjected to discrimination should immediately contact a federal employment law attorney. By Mathew B. Tully, Esq. Mathew B. Tully is the founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military person- nel and federal employees and can be reached at email@example.com. To schedule a meeting with one of the firm's federal employment law attorneys, call 202-787-1900. The information in this column is not intended as legal advice.
April 15, 2013
April 29, 2013