Definition – Unconscious bias refers to the biases we have of which we are not in conscious control. These biases occur automatically, triggered by our brain making quick judgments and assessments of people and situations based on our background, cultural environment and our experiences.

Over the last few years there has been a marked increase in discussions about, and an industry developed around, the concept of “unconscious bias”. Also referred to as “Implicit bias”, as evident from the definition above, the concept is that our brains form fast judgments and assessments without us being consciously aware that the judgments and assessments are being made.

The discussion around this subject has moved from the realm of social psychological theory, and grabbed hold in the mainstream of organizational Human Resources Departments, and within government and policy development agencies, including the Ontario Human Rights Commission.

These organizations and government agencies have set out to purportedly raise awareness in their respective constituents of the existence of unconscious bias, to train people to identify their own unconscious bias, and then train to correct these biases or avoid acting on them if they are deemed unfair or discriminatory (Using the Implicit Bias Test – “IAT”).

A simple Google search on the terms “unconscious bias” or “implicit bias” confirms a large industry of diversity consultants and trainers offering services to employers in these fields.

Google, Facebook, and Microsoft have all embarked on high profile training regimes to identify and stamp out socially negative unconscious biases in their workforce.

The Canadian federal Judicial Advisory Committees (the government appointed committees that vet and recommend candidates for judicial appointments in Canada) now require that “all JAC members will receive training on diversity, unconscious bias, and assessment of merit.”

On December 2, 2016, The Law Society of Upper Canada, the organization that governs the law profession in Ontario, adopted a report entitled Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions – November 2016. In order to address what the Report identified as widespread racism in the legal profession and the Law Society organization itself, the Law Society undertook to provide unconscious bias training to law firms, lawyers, and other members of the legal profession under the section of the report entitled “Educating for Change”.

I have recently received inquiries from employer clients indicating that they have become aware of organizations undergoing unconscious bias training, and asking if there was a legal requirement to provide this type of training

The nobility of the exercise is clear. However, there is no legal requirement and there is a body of academic research that indicates that the efficacy of the training may in fact be less than certain, and possibly harmful in exacerbating division.

The Law on Bias Training

There is no specific legal requirement that Ontario employers develop any policies or undertake any form of anti-discrimination, racism, or unconscious bias training.

Bill 168 introduced the requirement that Ontario employers maintain workplaces safe from violence and harassment. Harassment is defined as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome“. Workplace harassment can involve unwelcome words or actions that are known or should be known to be offensive, embarrassing, humiliating, or

demeaning to a worker or group of workers. It can also include behaviour that intimidates, isolates, bullies, or even discriminates against the targeted individuals. This necessarily includes an obligation to maintain the workplace free from harassment related to discrimination and/or racism.

Further, under the Ontario Human Rights Code, employers are responsible for any discriminatory act undertaken by any of their employees as against another person on the basis of a protected ground in the provision of services or employment (whether the act was intentional or not). Discrimination can include harassment, which is defined as “comments or actions that are unwelcome to you or should be known to be unwelcome. You have the right to be free from humiliating or annoying behaviour that is based on one or more Code grounds.”

In its attempt to fulfill its mandate of promoting the Code, and developing policies on how the Code ought to be interpreted, the Ontario Human Rights Commission has set out its opinion that in some cases racist “beliefs are unconsciously maintained by individuals and have become deeply embedded in systems and institutions that have evolved over time“. Further, the Commission has the view that unconscious bias exists, and that training to identify bias and to discourage employees from acting on those biases is consistent with promoting a progressive workplace and a progressive interpretation of human rights laws.

In its 2005 publication “Policy and guidelines on racism and racial discrimination”, the Ontario Human Rights Commission stated as follows:

“Consider this:

In discussing racism, it is necessary to consider the unearned privileges, i.e. benefits, advantages, access and/or opportunities that exist for members of the dominant group in society or in a given context….P.13.”

Given that the policies are intended to be (and generally are) followed by the Tribunal and the courts, it is evident that identification and action on unconscious bias have been targeted by the government of Ontario and the Human Rights Commission as valid endeavours and hallmarks of progressive employers generally.

What Is the Scientific Opinion on the IAT and Unconscious Bias?

However, a canvass of scientific literature on unconscious bias and related training programs reveals not only that the scientific consensus may be unclear, but in fact, that the consensus is that unconscious bias cannot be identified in testing, and that any program designed to identify and then change outcomes with respect to unconscious bias can actually exacerbate existing bias.

Clinical psychologists including in a recent article in the Canadian HR Reporter “‘Equity’ fatal trap for human resources – Is unconscious bias training ‘an Orwellian nightmare, unsubstantiated by science?” have opined that the testing to identify unconscious bias is fundamentally flawed “and very difficult to distinguish from a familiarity bias or in-group preference“, and that “there is no evidence unconscious bias training programs actually reduce such bias, and some evidence indicates the problem is actually worsened“.

(equity-fatal-trap-for-human-resources – pdf link to article).

In a January 2017 article in the Chronicle of Higher Education entitled “Can We Really Measure Implicit Bias? Maybe Not”, the author cited the following:

“Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behaviour appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behaviour. These findings, they write, produce a challenge for this area of research.”

“scientists don’t know how to measure implicit bias with any confidence and that they shouldn’t pretend otherwise.”

More importantly, apparently one (1) of the three (3) authors of the original research and design of the IAT has now publicly disavowed the research results and methodology.

In New York Magazine – Science of Us, Jesse Singal published “Psychology’s Favorite Tool for Measuring Racism Isn’t Up to the Job”

“Finally, there are hints which suggest that the race IAT could directly diminish the quality of certain intergroup interactions. In a 2012 study published in Psychological Science, for example, the psychologist Jacquie Vorauer had a bunch of white Canadians complete a work task with an aboriginal partner. Prior to doing so, some of the participants took an IAT pertaining to aboriginal people, some took a non-race IAT, and some were asked for their explicit feelings about the group. Aboriginals in the race-IAT group subsequently reported feeling less valued by their white partners as compared to aboriginals in all of the other groups. So while IAT proponents have suggested it could be used to improve intergroup relations, writes Vorauer, ‘if completing the IAT enhances caution and inhibition, reduces self-efficacy, or primes categorical thinking, the test may instead have negative effects.’

In short, unconscious bias training may make your workplace more biased.

It has increasingly become apparent that scientific consensus in this area is moving away from unconscious bias as an area where behaviour can be identified and modified, and towards a finding that unconscious bias training may cause more harm than good.

As employers rush headlong into the unconscious bias training world, encouraged forward by the industry and the recommendations of the Ontario Human Rights Commission, I would caution employers to review the literature on the subject, and the experiences of other employers, understanding that there is no legal requirement to undertake these efforts.

As Singal stated “Unless and until new research is published that can effectively address the countless issues with the implicit association test, it might be time for social psychologists interested in redressing racial inequality to reexamine their decision to devote so much time and energy to this one instrument. So, contra Banaji (one of the authors and proponents of the IAT), scrutinizing the IAT and holding it to the same standards as any other psychological instrument isn’t a sign that someone doesn’t take racism seriously: It’s exactly the opposite.”

While the objective of a diverse and inclusive organization is a noble one, it is apparent that employers may wish to explore other (and perhaps more effective) means to achieve the objective and to signify to the marketplace your organization’s embrace of these values.

Curious about the test? – you can take it here (with caution):

Jared Brown – Lead Counsel