Labor and Employment Law

Ca. Labor & Emp't Rev. November 2015, Volume 29 No. 6

Unconscious Biases: What We Don’t Know Can Hurt Us—and Others

By Amy Oppenheimer

Amy Oppenheimer is an attorney and retired administrative law judge whose law firm focuses on workplace investigations. She has written a book about investigations, testifies as an expert witness on employer practices in responding to and investigating harassment, and is the founder and past-president of the board of the Association of Workplace Investigators (AWI). Ms. Oppenheimer has trained employers and employees throughout the country in preventing and investigating workplace harassment, discrimination, and retaliation, and on understanding and eliminating implicit bias.

As professionals who pride ourselves on our commitment to justice and fairness, we do not like to think of ourselves as impacted by biases, even biases of which we are unaware. This article addresses unconscious bias and its impact on the practice of labor and employment law.

Bias may be defined as an irrational preference or inclination that prevents an unprejudiced consideration of a question. In other words, prejudice. Although we may associate the term "bias" with prejudice against a disadvantaged group, the term applies to any preference or prejudice. Some biases simply reflect personal tastes or experiences. Others are impacted by societal norms.

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