Is subtle bias illegal just like overt discrimination or harassment?
While at one time overt discrimination may have been more common in workplaces -- outright racially hostile or sexually hostile comments -- now discrimination at work often can be more underground and subtle. A recent article in Harvard Business Review reviews some of the social science research on the effects of subtle bias at work.
The authors looked to test the relative effects of subtle and overt discrimination. They gathered every study they "could find that looked at relationships between discrimination and outcomes such as career success and satisfaction, stress, turnover, performance, and physical and mental health symptoms." They had 90 separate samples and broke them down by the nature of discrimination that was reported -- subtle verses overt.
Their results showed that across every job and individual outcome, the effects of subtle discrimination were at least as bad, if not worse than, overt discrimination. They posit a few different reasons for this finding.
The first is that subtle discrimination can make an earnest and well-meaning person over-analyze what is causing it. The authors suggest that this results in people "spend[ing] a lot more time ruminating and trying to figure out the latter situation than a clear-cut case of sexism [or racism, etc.]. This rumination, the longer it continues, can be significantly depleting to cognitive and emotional resources."
The second reason they suggest subtle bias can have more effects is because it can happen so frequently. If there is subtle bias day after day, hour after hour, it can grind you down in a different way than one openly hostile remark or act.
The third reason they suggest it can be worse is because, they say, "there is little or no legal recourse." This is an overly broad legal statement and, as an employment lawyer, cannot flatly be said to always be true. In support of it, they point to a study they did of approximately ten years of federal race and sex/gender discrimination cases. It suggested that "only overt and intentional forms of bias (not subtle and unintentional ones) were associated with decisions favoring plaintiffs." What they fail to account for, however, are those cases that didn't develop in the federal dockets they reviewed because they settled or those cases that were handled outside of court.
That said, it is true that not every manifestation of subtle bias is illegal under the employment discrimination laws. The standard for when conduct or speech becomes an illegal "hostile work environment" in Massachusetts is when the conduct or speech is hostile, intimidating, humiliating or offensive from both an objective and a subjective perspective. To establish that the conduct is hostile, intimidating, humiliating or offensive from an objective perspective, the standard of "severe or pervasive" is used. Thus, a pervasive barrage of sexually offensive conduct could likely rise to that level; something much, much less than that might not get there.
This issue, like many employment law issues, is very fact-dependent. That means the facts underlying what happened, when, by whom, and how, changes the answer as to whether subtle discrimination -- whether it is racial bias or sexual harassment -- is illegal.
See more on racial harassment, sexual harassment and employment discrimination generally or contact me to talk through your options. This is a very complicated area of law as well as personally.