Part of Kathy Caprino’s series “Creating Workplaces That Work For All”
Throughout my 18-year corporate career in publishing and marketing many years ago, I experienced firsthand the devastating impact of gender bias and discrimination, and sexual harassment, and those experiences occurred at more than one organization. This is also true of many of the hundreds of mid- to high-level professional women around the globe I hear from each year, who have been wrongfully treated by their employers.
But when this happens, many (if not most) employees don’t fully comprehend exactly what’s occurred, nor do they understand their legal and other options for defending their rights. On the other hand, I’ve worked with great leaders and managers who have a deep desire to create work cultures that are fair, equitable and diverse, but many simply don’t know the steps to take to make the shift within their companies, staffs and teams.
To learn more about how to reduce or eliminate gender bias in organizations’ hiring and employment practices, I caught up this week with Jean Back, an employment attorney with Schwabe, Williamson & Wyatt. Back brings more than 25 years of experience helping employers solve problems to complicated scenarios. With broad expertise in litigation, mediation and settlement of employment and business tort claims, Back is skilled in training managers and employees in employment compliance, and is experienced in all areas of state and federal employment, wage and hour, discrimination, and leave laws.
Here’s what Back shares on how to reduce gender bias in organizations’ hiring process beginning today:
Kathy Caprino: First, Jean, what does gender bias look like in the layoff and/or hiring process? What is happening and why?
Jean Back: Gender bias in the hiring and layoff process can be both conscious and unconscious. Conscious gender bias is an outright preference to hire individuals of one gender over the other. For example, a construction company may require individuals who can lift 100 pounds and, without further study, decide that only men can perform these positions.
Unconscious gender biases are attitudes, stereotypes, and perceptions that may stem from childhood, traditions, culture, or norms. These ideas seep into our unconscious and become part of our decision-making. Both men and women can have unconscious gender bias. It does not require bad motives. In fact, many decision makers who learn about unconscious bias make concerted efforts to relearn how they think and make decisions.
In the hiring process, gender bias often starts with job announcements. Studies have shown that certain adjectives can unconsciously signal a gender preference. For example, the use of the words “pleasant” or “sensitive” tend to signal a female gender preference, and the words “dominant,” “achievement-oriented” or “ambitious” can signal a male gender preference.
Unconscious bias in hiring can also occur when a company recruits for talent. Recruiting talent through personal networks may help find qualified applicants, but it can promote hiring for sameness. Our personal networks and friend groups often tend to be those people who are like us–a principle scientists call homophily.
Hiring for culture or fit is also another way to say that we want to hire someone who fits into our mold and our way of thinking, promoting homogeneity rather than diversity.
Caprino: How can biases negatively impact other aspects of the employment process?
Back: Unconscious bias can continue throughout employment in job evaluations, promotions, and opportunities for advancement, which can ultimately affect reductions in force. Depending on the processes a company uses, unconscious bias of decision-makers and managers can influence these processes, which can ultimately bleed through to reduction-in-force decision-making.
Companies wishing to rely on performance evaluations in a reduction in force should ensure that it has studied their practices and eliminated unconscious bias baked into performance reviews. For example, bias can creep into the performance evaluative process when managers and colleagues provide more support to one gender (usually men) than to another also called Performance Support Bias. The performance evaluations themselves can allow unconscious bias to occur–Performance Review Bias–and happens when the performance evaluation forms are open-ended such that they allow managers’ unconscious bias to creep into the actual performance reviews.
Similar to the hiring process, unconscious bias can occur in the decision over who to lay off if the manager making that decision is unaware of their bias. If there are two similarly situated performers, one male and one female for instance, then unconscious bias could come into play in choosing which applicant should be laid off.
Caprino: In deciding which people to lay off or let go, what should go into that evaluation process and what should not be factored in?
Back: One step in the process to prepare for a reduction in force is to decide the objective non-discriminatory criteria to determine which employees are subject to layoff. A diverse control group within the company should decide these criteria early in the process before managers make layoff recommendations. Best practice is to ensure that all of these managers have received both anti-harassment and unconscious bias training.
Generally, companies want to keep the best performers and most versatile employees. Employees who are already cross-trained to perform more than one function are more valuable to the organization and can easily pivot to another role. Alternatively, a company may decide to reward loyalty and long-term employment. Examples of specific non-discriminatory criteria could include temporary employees or the closure of a specific department or production line. In these examples, the employer is acting not based on gender or race but based on need. For example, to reduce the number of employees, start with temporary employees first. Or, if a product isn’t selling as well, then reduce a production line–the reason for the reduction is based on sale of the product being produced, and not on gender or race of the person producing it.
Factors that a company should not consider in layoffs include those that are patently illegal because they discriminate against a person in a protected class. This includes employees who have taken parental leave or complained about company policies.
While these factors will not insulate an employee chosen for a reduction in force based on objective non-discriminatory criteria, they also cannot be considered as a reason to include the person in the layoff. Typically, women are often impacted at a greater rate than men because there is a perception that they will not work as hard or as many hours as their male counterparts due to childbearing and rearing. For example, it would be illegal to terminate the position of women of childbearing age because the employer is concerned that women in this age group will not be as productive, or will work less hours.
Caprino: What about work culture itself? How can a bias-free culture be cultivated and how can bias-free decisions be made through the organization?
Back: Every organization has a unique workplace culture, which develops from the inception of the company. Culture is the organization’s personality: It is the values, beliefs, interactions, and behaviors in a work environment. While company leadership can influence a company, culture is shaped by the behaviors and attitudes of employees at all levels.
A truly “bias-free” culture may not be achievable because we all carry unconscious bias and to rid the organization of this bias involves buy-in from every individual, from the Board of Directors to rank-and-file employees. However, that does not mean companies shouldn’t try.
Engage in these processes:#
#1: Recognize and understand bias
The first step toward cultivating a bias-free culture is to recognize and understand conscious and unconscious bias. This can only be accomplished through serious introspection and training. Companies must value and invest in training that allows employees to participate in a series of small group meetings to discuss the issues openly and candidly. Companies must also audit their human resources and commit to making changes that address the inequities in these systems.
#2: Conduct pay equity analyses
As is now required by many state statutes, companies should conduct a pay equity analysis to determine whether individuals who perform work of a comparable character and have similar education, seniority, and experience are paid equally for their work. At the conclusion of this deep dive, companies should develop DEI policies that address the issues discovered.
#3: Develop strong and sound policies adhered to by all
Another key step required to achieve a bias-free workplace is to have strong, clearly- stated policies that support anti-harassment and anti-discrimination behavior and foster respect for all. Companies must address complaints and learn how they started to root out the issue.
Ultimately, culture comes from the top of the organization and is modeled to the employees. Therefore, the Board of Directors, C-Suite and managers must learn about their own biases, work hard to correct them, and model appropriate behavior and a commitment to DEI to the workforce.
Caprino: What are the three most important strategies for mitigating and removing gender bias from the layoff process today?
Back: Take these steps:
Audit your human resources process to eliminate gender bias that can bleed through to affect a reduction in force. Review how you support, reward, and evaluate employees to ensure that early gender bias does play out in your reduction in force decisions.
Provide DEI and unconscious bias training to the small control group who is running the reduction in force and deciding which employees to eliminate.
Perform a reduction in force statistical analysis that compares the percentage of employees chosen for the reduction in force in various protected classes to the total workforce. This helps ensure that the reduction in force does not have a disparate impact on a particular protected class, such as gender.
If the statistical analysis supports that you are laying off a high percentage of employees in a protected class, then it may be necessary to reconfigure the reduction in force so that you choose other employees to lay off who may have been close or borderline for the program.
Caprino: Finally, what are the legal risks that employers face in reductions in force?
Back: Specifically with respect to gender, employers face a legal risk that an employee or a group of employees will file a charge before their state administrative agency, or the federal EEOC, and/or in state or federal court to challenge the equity of the reduction in force.
They could try to argue that the layoff statistically affected women at a higher rate than men and therefore was discriminatory. Or an employee will argue that they were subject to disparate treatment because the employee’s inclusion in the reduction in force was because of the employee’s gender or other protected class. They could also claim that they were laid off because of a protected activity (like a request for leave or whistleblowing complaint) that occurred close in time to the reduction in force.
Caprino: Any last words of advice for leaders, managers and HR teams that want to promote diversity, equity and inclusion for all?
Back: There are two DEI strategies that we’ve found to be successful within my company, Schwabe. The first is to actively recruit from underrepresented communities and support young professionals early in their careers. We do this through our 1L Diversity Fellowship Program and by recruiting at events like the Pacific Northwest Minority Job Fair.
The second is to leverage your company’s expertise to support DEI in your community at large. For example, Schwabe attorneys have donated more than 40,000 pro bono hours to help close the legal justice gap since 2010.
I also recommend embracing DEI and becoming an advocate. Read all that you can about continuous improvement in this area, including new studies, suggestions, and ideas.
As an employer, it’s crucial to take a thoughtful and diligent look at your hiring and employment practices to root out bias, reduce risk and best serve employees. Look internally first and go from there. Be proactive, intentional and scrupulous in everything you do.
For more information, read Jean Back’s piece on “Avoiding Discrimination Claims as the Result of a Reduction in Force.”