Dukes v. Wal Mart & Unconscious Bias

Online Unconscious Bias and Putting it to Sleep

In Social Media Recruiting & Social Media Discrimination of  this five part series,  I outlined some of the types of protected classes and discussed some real world possible scenarios regarding your company and social media discrimination.  In EEOC & Workplace Discrimination, I outlined potential liabilities and government agencies that are learning about social media.  Disparate Impact & Disparate Treatment in the Workplace discussed disparate and adverse impact.  This series has been extremely popular.  It’s generated some great conversations and felt it should continue.  Part 4 without much further ado. . .

 Dukes v. Wal Mart & Unconscious Bias

While the world awaits the Supreme Court Ruling on the world’s largest class action lawsuit, Dukes v. Wal-Mart Stores, Inc, there looms another potential employer liability when it comes to employees in the workplace, social media and social media discrimination.

On March 29th of this year, the Supreme Court began hearing oral arguments for the largest sex-discrimination case in history.  Seven women claimed that they were looked over for promotions and large raises while their male counterparts received them.

Now just imagine if these seven women had glowing references from these same supervisors using LinkedIn and comments on their Facebook and Flickr photos saying things like, “I’m so happy to hear about your pregnancy” or supervisors simply liking their employees’ photos.  It’s things like this that provide evidence that employers were aware of certain lifestyle and family decisions helping to drive their employment decisions unconsciously.

Online Unconscious Bias

As social media becomes the communication method of choice, companies should be concerned about the potential liabilities from online unconscious bias.  In 2007, the EEOC began focusing their efforts on unconscious bias.  Unconscious bias is the concept that individuals can have a bias at an unconscious level that influences decision-making in ways that the individual is unaware.  Essentially employers and hiring managers demonstrate and are unaware of behaviors that are bias against a protected class.  Unconscious bias is also the foundation of the Dukes V Wal-Mart class action lawsuit.

Some of these experts believe these unconscious biases are extremely pervasive based on their studies.  Over 80% of their respondents showed “implicit negativity toward the elderly compared to the young; 75-80% of self-identified Whites and Asians show an implicit preference for racial White relative to Black.”

Project Implicit is a virtual laboratory in existence since 1998.  Over 4.5 million respondents have completed their project demonstration voluntarily providing their information for use toward the study.

So does it make sense to assume that employment bias behaviors and patterns that one demonstrates in person would also occur online?


Putting Unconscious Biases to Sleep

Since Facebook’s launch in 2004, university experts have been studying the correlation between Facebook users offline and online behaviors.  Their work over the last 7 years supports that fact that the key to social media platforms like Facebook is that pre-existing offline community factors and behaviors compliment the use of the social media site. And because of studies like this it makes sense to assume that employers would exhibit the same biases both online as they already do offline.  The only difference being the ease at which employers can have access to this protected information allowing their unconscious biases to become more prevalent.

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Jessica Miller-Merrell

Learn more about Jessica Miller-Merrell, SPHR, SHRM-SCP, the founder of Workology, a workplace HR resource, and the host of the Workology Podcast. More of her blogs can be found here.

Reader Interactions


  1. John Rorick says

    Great article. While social media itself is emerging as a pervasive method of communication the idea of unconscious bias has been around (maybe not labeled) for decades. And while you note that people “can” have an unacknowledged bias I would go further and say we all do. It is how we conduct our assessments and measure performance, speaking from an HR standpoint, that determines whether or not it if will unduly influence areas such as promotion/hiring decisions. Thank you for writing on this topic.

  2. Stephen Lemons says

    An important topic that is rarely reported on. I suspect that if one of these cases ever reaches the Supreme Court, however, the Court will follow the rule of the Miranda Rules and allow employers to discriminate with impunity under the theory “If you waive your right to remain silent, anything you say [or post on Facebook] can and will be used against you.” As your article points out, employers routinely discriminate against “protected classes” of information all the time. Just walk into an interview and they know what race you are. Nearly every job application asks for dates of graduation from high school and college. It’s simple arithmetic to figure out a candidate’s age with the formula ([Current Year]-[Year of High School Graduation]+18) = Current Age. Substitute 22 for 18 in the case of a BA. And I have been asked every illegal question in interviews. I would argue that an employer is really only entitled to know what skills you have for the job. They are not hiring you to be their child, pet, spouse, best friend, or slave. Your personal life is none of their business. Nevertheless, Americans tolerate an astonishing level of privacy invasion by employers — most notably drug screenings and credit investigations. Even inquiries made of former employers is probably inappropriate. How many of us have resigned from employers who were inept or just plain unethical — but, of course, an employer is always assumed to be the “good guy” and the employee must have been an ungrateful wretch for not groveling at the feet of “Mr. Scrooge.” Recently CNN reported and a significant number of college students have begun to use aliases on their Facebook accounts to thwart background checks by employers. My own research of social networking, which goes back to the days of online services and chat rooms, shows that most users of “social networks” fall out of the social mode within a year, making themselves visible only to their immediate family and friends or dropping out completely. So much for the “social” of social networking. I think most of us would be uncomfortable if we learned the CIA, FBI or some private firm had a detailed dossier on our life. Yet, so many people seem willing to expose themselves to the world on the web. Personally, I can’t think of anything I can do on Facebook that I can’t do more privately by email.



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