Settling Gender Discrimination Class Actions (Part II)

It may not seem credible that gender discrimination remains widespread and systemic in American workplaces. Women outnumber men in colleges and graduate programs; they have entered the workforce in force; women run some companies, universities, states, and departments of the federal government.

Despite all this progress, though, discrimination persists. Women are only 17% of Congress members. Women head a mere 2.6% of Fortune 500 companies. In other words, men still overwhelmingly control our most powerful political institutions and our economy.

The familiar glass ceiling argument could explain this striking disparity: women can rise up through the ranks professionally, but at some point they hit the glass ceiling and cannot go any higher. If that were the only problem, it might explain why women are so conspicuously absent from the powerful positions listed above. But the gender disparities start well below the highest levels of power.

A striking pattern emerges from statistics analyzing the numbers of women at various levels in financial services companies (which I’ve become familiar with from representing so many women in discrimination cases against them). At the entry level, there can be as many female as male employees. At the next level up, women make up a smaller percentage of employees. At the next level, even fewer of the workers are women. And on it goes, until you reach the near complete absence of women from the position of CEO. Graphically, the numbers describe a pyramid: with every promotion the percentage of women shrinks.

Social scientists like
William Bielby of the University of Illinois at Chicago
and Barbara Reskin of the University of Washington
have studied this phenomenon and traced it to its roots: unconscious bias that affects subjective decision-making.

Even the most fair-minded people are subject to unconscious biases. The Implicit Association Test is one of many studies to demonstrate that people can have strong preferences and antipathies they may not be aware of. Even people who consider themselves very fair-minded can be unconsciously prejudiced against minorities, for example. To give a very rough summary of part of the underlying theory, people tend to think in terms of “in groups” and “out groups.” My “in group” is the group of people who are like me in salient ways such as gender, race, religion, age, educational background, profession, family status, etc. I tend to attribute more positive characteristics to members of the in group and more negative characteristics to members of the out group, who are unlike me. For instance, as a native Midwesterner, I may unconsciously prefer fellow Midwesterners to people from other parts of the country, although if you ask me whether I think Midwesterners are better than other Americans in any way, I will honestly answer that I don’t. The bias is unconscious.

Unconscious biases operate in the workplace as they do in every other sphere of human interaction, with the result that the groups in power tend to stay in power. Male managers may subconsciously believe that other men are more capable than women, outperform women, or are more committed to their work than women. Again, these beliefs can be subconscious, but they still affect decision-making. When it comes to a subjective decision such as who deserves a promotion, a male manager with an unconscious bias in favor of men is more likely to promote a man than a woman. The same is true of granting raises, distributing assignments, and making opportunities like management training available. This is how unconscious bias can combine with subjective decision-making to favor men (and other groups like whites) and to create the pyramid that leaves women at the lower corporate levels while disproportionately men climb to power.

There are other factors at work here too. People tend not only to think more highly of members of their in group, but to be more comfortable with them. As a result, a male manager may invite some employees to a golf outing or to dinner – nothing formal, just being a down-to-earth supervisor. He invites the employees with whom he feels most comfortable or thinks he has the most in common. A slew of scientific studies demonstrate that he is likely to feel most comfortable with the employees who belong to his in group – in this case, men. As a result, he gets to know his male subordinates better and become friends with them. When plum assignments or opportunities for promotion arise, the manager is more likely to dole them out to the subordinates he is more comfortable working with and is friends with.

Unconscious bias is difficult if not impossible to change. Researchers including Frank Dobbin of Harvard University have shown that common techniques for combating prejudice, such as diversity training, not only do not help – they actually backfire.

The way to tackle workplace discrimination is not to try to change people’s unconscious thoughts, but to make decision-making processes less subjective and therefore less vulnerable to unconscious bias. Action must come from the top of the organization: an employer that provides clear, objective criteria to guide otherwise subjective decisions, and that enforces the use of those criteria, will make the workplace less discriminatory by diminishing the opportunity for decision-makers’ unconscious biases to affect their judgment.

The settlement of the gender discrimination class action against Novartis discussed in the first part of this post takes a stab at making these kinds of changes. It requires Novartis to clarify and systematize the criteria for evaluating employees, to train managers to evaluate employees fairly, and to “calibrate” evaluations to check that evaluators are applying performance criteria in a uniform manner.

Where bias is conscious and discrimination is intentional, decision-makers will find ways around objective criteria for decision-making. Conscious prejudice presents an entirely different set of challenges than unconscious bias. But I’d like to believe that a lot of workplace discrimination results from unconscious bias and that employers will improve their procedures to protect decision-making processes from that bias. Some employers have already done so, albeit usually under court order (demonstrating the need for more discrimination class actions). Employer initiatives to make subjective decision-making more objective will help end workplace discrimination. Please post a comment to share your workplace experience.

4 thoughts on “Settling Gender Discrimination Class Actions (Part II)

  1. Bill Bielby says:

    I think it’s easy to over-emphasize the role of “hidden bias” and lose sight of organizational issues. I wrote about this here:
    http://www.virginialawreview.org/inbrief.php?s=inbrief&p=2010/02/28/bielby

    Here’s a relevant passage:
    But to me (and no doubt to other organizational sociologists), the flaw in the legislative approach is that legal scholars, litigators, human resource professionals, and diversity consultants have become so enamored with the notion of ubiquitous unconscious, implicit, or hidden bias that they are quick to attribute systemic workplace racial and gender inequality to what is going on in people’s heads. Instead, it is vital to consider what is built into organizational structures, processes, and routines.

    The “cognitive turn” in workplace bias discourse is reflected in the business press, in professional human resources discourse, in legal scholarship, and in the legal strategies embraced in employment discrimination litigation. For example, “The War Over Unconscious Bias,” a 2007 Fortune article about the Dukes et al. v. Wal-Mart gender class action litigation,3 proclaimed that “the problem isn’t [Wal-Mart's] policies, it’s their managers’ unwitting preferences.”4 A year earlier, Business Week framed the issue similarly in an article titled “White Men Can’t Help It.”5

    The Society for Human Resource Management’s website contains numerous links to articles about the dangers of unconscious bias and prescriptions for how to identify and eliminate it.6 In legal circles, the National Employment Lawyers Association has sponsored seminars for plaintiffs’ attorneys to educate them on how expert testimony on the science of implicit bias can be used in litigation, and their management-side opponents offer seminars on how to counter it.7 Legal battles over the application of implicit bias testimony in litigation draw upon writings by legal scholars on the topic, providing fodder for further scholarly analysis in leading law reviews.8

    In short, business and legal professionals today usually attempt to understand workplace discrimination in terms of processes and mechanisms that are cognitive and psychological, rather than organizational and institutional.9 Thus it is not surprising that proposals for legal reforms to combat “invisible, deep, and pervasive” biases10 focus on changing what happens in peoples’ heads rather than identifying and remedying the subtle and hidden features of organizational policies, practices, and structures that create and sustain unlawful racial and gender inequality at work. The irony revealed by Professor Bartlett’s cogent analysis is that those who view discrimination in contemporary workplaces as grounded in psychological processes of implicit bias offer remedies that are based on a shallow reading of the relevant psychological science. By ignoring motivational issues, the solutions they propose are as likely to intensify cognitive bias as to counteract it.

    • piperhoffman says:

      I agree that it is not worthwhile to “focus on changing what happens in peoples’ heads rather than identifying and remedying the subtle and hidden features of organizational policies, practices, and structures that create and sustain unlawful racial and gender inequality at work.” That is one reason I find Frank Dobbin’s work so useful: he demonstrates empirically which proposed solutions “are as likely to intensify cognitivie bias as to counteract it.” Thanks for commenting!

  2. davenycity says:

    great blog thank you

  3. [...] is 68 pages long). Ending discrimination can only happen before discrimination starts. Read more in Part II. Categories: Discrimination, Employment Law, Feminism, Law Tags: Comments (1) Trackbacks [...]

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