Implicit bias and appearance discrimination in the workplace.

AuthorMartin, Michael

    The ability to discriminate is a fundamental skill in human development. We learn early on that some objects are dangerous and some are safe. We also are taught to distinguish good from bad, preferable from not preferable, and beautiful from ugly. In this way, we learn to categorize items and label them. These perceptual skills are honed as we mature, and we extend these skills to decisions about people we encounter. In professional environments, we ideally judge an individual's abilities and talents and strive to judge them objectively and without bias.

    Unfortunately, many of us tend to believe that there is an objective reality and that our perceptions are accurate in understanding that reality. For example, we try to, and sometimes pretend to, make objective judgments in performance appraisal. However, we cannot deny that decisions we make are at least partly based on our bias and our subjective reality. This subjective reality is based on our thoughts, feelings, biases, and experience. We are often unaware of the judgments, biases, and stereotyping we are making at a subconscious level, and even when we are aware of our biases, we tend to justify our behavior by using false attributions. According to Estrin, stereotyping is "to hold a belief that a person fits within a category and that all persons within a category are alike" (1996, p.70).

    We use categorizations such as stereotyping to make sense of the world around us, but automatic and unconscious reliance on stereotypes often results in bias, which can lead to discriminatory practices. Although recent studies refute the stereotypical personality traits commonly held about overweight employees (Roehling, Roehling, & Odland, 2008), employers traditionally have discriminated against overweight people in employment (Wilson & Jupp, 2004). Reasons for the discrimination may be valid reasons such as safety or a bona fide occupational qualification (BFOQ), but they may very well be irrational biases and assumptions. For example, studies by Heilman and Okimoto (2007) revealed a negative bias against women who are successful in male gender-typed domains, as they were not viewed as desirable as bosses. Further, the negative responses to these successful women were lessened by information that would make them appear more communal.

    Some industries are image-conscious, and appropriate appearance is sought after in hiring. Employers currently are not liable for discrimination against employees on the basis of their appearance as there are no federal laws which explicitly prohibit discrimination because of personal appearance; however, if appearance discrimination can be linked to racial, gender, and religious characteristics, liability through a discrimination claim may result (Theodassakos, 2006).

    Progressively, social science and legal academics have focused their discrimination examinations on the concept of implicit bias, which can be defined as our hidden or unconscious mental processes that have substantial bearing on discrimination (Greenwald and Krieger, 2006). Research suggests that discrimination which stems from implicit or unconscious bias is growing more pervasive in the workplace, and the role implicit bias plays in disparate treatment cases is emerging and evolving in our understanding (Babcock, 2006; Lieber, 2009). Further, Lee (2005) argues that implicit bias is "the emerging form of discrimination that limits employment opportunities for women and minorities" (p. 503).

    Although this paper focuses on the U.S., we recognize the importance of inquiring how other countries deal with this issue. Implicit bias is clearly not confined by geographical or national borders. In fact, according to the Implicit Bias and Philosophy International Research Project, most people will hold some sort of implicit bias (see:

    The American experience fits in a broader international context. The concept of discrimination is not confined to the U.S. and is a global concern as seen in the growing number of international human rights treaties (see:

    Generally, European law is similar to that of the United States, and prohibits appearance discrimination only when it involves other forms of bias covered by human rights law (such as that involving race, gender, religion, age, disability, and sexual orientation). However, in countries such as France and Germany, employees' rights are more highly recognized than those in the U.S., and employers rarely get away with biased treatment of their employees (Rhode, 2011).

    As mentioned, the U.S. is not an exception in its lack of federal law against appearance discrimination, but biases regarding one's appearance seem to be a growing issue in other countries as well. A recent multi-country study involving interviews of 700 people and surveys in ten countries revealed that negative perceptions about weight have spread even in the countries where heavier people are traditionally accepted positively (Brewis, Wutich, Falletta-Cowden, & Rodriguez-Soto, 2011).

    This paper examines the issues created by appearance discrimination in the workplace from psychological, social, and legal perspectives. Further, we provide universal recommendations to employers to better understand these issues and to be proactive in avoiding possible litigations. Further, as this is a growing global concern, discussions and examination of this topic are applicable to a global audience as all legal systems will need to address this issue.


    The Civil Rights Act of 1964 Title VII is designed to prevent discriminating against people on the basis of race, color, sex, national origin, and religion. However, despite continual legal efforts, employment discrimination still exists and may in fact be thriving. One of our developing challenges is that modern discrimination has evolved from what existed in1964. Even though Title VII has helped minimize overt discrimination, subtle discrimination which stems from implicit bias is still widespread (Lee, 2005). A plaintiff has to prove that discrimination was intentional in a disparate treatment case under Title VII (Lee, 2005); however, implicit bias, even though it is not intentional, still excludes certain groups of individuals, often resulting in unfair discrimination.

    Appearance can be more than looking neat or professional; it could be about dress, physical appearance, hair, or body alterations. Furthermore, such appearance issues are closely tied to gender, race, and religious backgrounds (Flower-Hermes, 2001). When appearance discrimination stems from gender, race, or religion, it can quickly become a legal matter. Many employers strive to judge their employees by their skills and performance objectively, but implicit biases and implicit prejudice often play a role in their decisions (Batz, 2006; Lee, 2005; Banaji, Bazerman, & Chugh, 2003). Physical appearance issues range from concerns of attractiveness, weight, height, body alterations, skin color, facial and body hair, and dress and symbols. These matters become complicated when they are linked to religious beliefs, age, or gender differences. Although appearance discrimination includes a wide range of issues, this paper focuses on appearance issues which could potentially create legal issues.


    3.0.0. Implicit Cognition

    Contrary to common perceptions, human decisions may not always be guided by conscious awareness or behavioral control. A new science of unconscious mental process is emerging, and the role it plays in discrimination cases is gaining attention (Greenwald and Krieger, 2006). The science of implicit cognition, according to Greenwald and Krieger, "suggests that actors do not always have conscious, intentional control over the processes of social perception, impression formation, and judgment that motivate their actions" (p. 946). Examples of the implicit mental processes, according to Greenwald and Krieger (2006), are implicit attitudes and implicit stereotypes. Attitude is "an evaluative disposition" (Greenwald and Krieger, 2006), and implicit attitudes, for example, may cause someone to act favorably or unfavorably towards another person even though very little information is available about the individual.

    Explicit attitudes and implicit attitudes toward something or someone may actually differ from each other. Implicit attitudes are attitudes that cannot be seen explicitly; therefore, they can only be accessed by implicit testing (Banaji, 2001). A stereotype is an association made between a particular group and a trait, but some associations may not be statistically valid. An example of an implicit stereotype is the association between male gender and fame-deserving achievement demonstrated in an experiment by Banaji and Greenwald (1995). The experiment revealed that there was a stronger implicit association made between male names with fame-deserving achievement than with female names.

    3.1.0. Implicit Bias and Discrimination

    Social science research has established the pervasiveness of implicit bias (Ayres, 2001). Implicit or unconscious bias may be a natural part of human behavior. To make sense of the world around us, we categorize and make associations. These associations are programmed in a person's mind, so the linked concepts can be retrieved more quickly than concepts that were not linked together (Carpenter, 2008). These associations often become stereotypes, and we sometimes resort to automatic reliance on stereotypes to understand and judge others.

    Implicit biases can be a problem because "they can produce behavior that diverges from a person's avowed or endorsed beliefs or principles" (Greenwald and Krieger, 2006, p. 951). Implicit or unconscious bias may have been considered secondary to explicit bias that leads to unlawful discrimination, but current...

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