Managing unconscious bias in employment decisions in the early childhood sector

Freya Lucas

Mar 18, 2024

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Quite apart from intentional prejudices, an individual’s decisions are also influenced by underlying or unconscious attitudes or stereotypes, known as “unconscious bias”. Unconscious bias likely plays a role in the early childhood sector, where a centre may unintentionally prefer female candidates in the recruitment process.

With the introduction of a positive duty under the Respect@Work laws, it is now critical that employers look to train managers regarding the impact of their unconscious biases in the workplace, particularly when it comes to employment, promotion and remuneration.

Unconscious bias and discrimination laws

Unconscious biases can influence an employer’s decision-making process and recruitment through biases known as ‘confirmation biases’ and ‘affinity bias’.

Confirmation bias is the tendency of people to favour information that confirms or strengthens their beliefs or values. In the recruitment process, confirmation bias can result in employers looking for evidence to support hiring the person they already believe should be given the job. For example, in the early childhood sector, a decision maker may hire female employees to affirm a bias they hold concerning parents’ preference in educators.

Similarly, affinity bias is the tendency to be empathetic to people who are close to us in background and experience. If affinity bias is present during the recruitment process, it can stifle creativity and lead to stagnation by only attracting candidates with the same views.

While unconscious bias may inhibit diversity, there is a question as to whether a decision influenced by unconscious bias can amount to discrimination under discrimination laws. A recent Victorian Court of Appeal decision, Austin Health v Tsikos [2023] VSCA 82, found that the Equal Opportunity Act 2010 (VIC) (EO Act) does not preclude a court or tribunal from making a finding of unintentional discrimination or unconscious bias.

Austin Health v Tsikos

The Court of Appeal confirmed that a breach of the EO Act might be established if a court or tribunal found there to be discriminatory unconscious bias by the employer.

In the decision, Ms Tsiko alleged that she was treated unfavourably because of her age and sex. Ms Tsiko relied on the expert evidence of Dr Jennifer Whelan, a social psychologist, whose report included comments on unconscious bias. While Dr Whelan did not “express an opinion about the thought processes of individual decision-makers, her opinion was to the effect that several of the recognised reasons for the persistent gender pay gap that exists in the Australian workforce were apparent in the Department at an organisational level.”

In April 2023, the Court of Appeal of Victoria handed down its decision which upheld the decision of the Supreme Court, which found the EO Act “did not intend to preclude the tribunal of fact from making a finding of unintentional discrimination or unconscious bias, if such a finding is open on the evidence in a particular case”. The takeaway is that a court or tribunal can make a finding of unintentional discrimination or unconscious bias under the EO Act.

Unconscious bias in the workplace – what should you do

The recent Respect@Work changes introduced a positive duty into the Sex Discrimination Act 1984 (Cth) which extends to addressing the impact of unconscious bias. The duty is for an employer or person undertaking a business to take “reasonable and proportionate measures” to eliminate sex discrimination, sexual and sex-based harassment, conduct conducive to a hostile work environment on the grounds of sex, and related acts of victimisation.

The Australian Human Rights Commission (AHRC) has released ‘Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth)’ to assist employers in complying with the positive duty, including a recommendation that “policies and practices to address gender bias in recruitment and promotion” as part of the policies which can shape a workplace’s culture.

As a best practice approach, employers should introduce unconscious bias policies and training as part of the measures to eliminate sex discrimination. Programs should be carefully designed and implemented and address the full range of areas in which unconscious bias could result in discriminatory conduct. In the early childhood sector, employers should take proactive steps to minimise a decision maker’s biases (which can be about a candidate’s sex, race or disability – just to name a few) in the recruitment process. For example, employers can implement standardised interview questions or other steps, such as removing a candidate’s personal information from their CV before screening for the position.

If you have any questions or need legal assistance, please get in touch with Holding Redlich Partner Michael Selinger at michael.selinger@holdingredlich.com.

DisclaimerThe information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Learn more about us here: www.holdingredlich.com

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