Erika Royal, Partner, Holland& Knight, Fort Lauderdale Office. Handout Photo 7-7-2016

Starbucks' bold decision to close some 8,000 stores on the afternoon of May 29 to conduct racial bias training, following the arrest of two black men who were waiting for a friend at one of its Philadelphia locations, has shone a light on training related to “implicit bias.” Implicit bias training has been around for a while, but gained popularity following the shooting of Michael Brown in Ferguson, Missouri and the Department of Justice's subsequent finding that the Ferguson Police Department engaged in a pattern of racial bias. This training gained acceptance in corporate diversity and inclusion circles after tech companies such as Facebook and Google disclosed their own bias training programs, with many companies following suit.

The Starbucks decision has raised the question of the effectiveness of so-called unconscious or implicit bias training. In her article, “What is Implicit Bias and Why Should Employers Care?” Kathlyn Perez describes implicit bias as “an unconscious projection of our encounters from childhood through adulthood, influenced by everything from geographic location, to social class, mental ability, profession, age, gender, race, family and marital status.” This bias impacts our behaviors and choices in ways that are often negative, discriminatory and exclusionary. Implicit bias training seeks to teach individuals to recognize and be aware of their own ingrained biases, as well as strategies for diminishing their effects.

The concept of implicit bias is controversial. Some argue that there is more than enough explicit and overt bias to deal with—there is no need to waste time trying to decipher the implicit biases of individuals. Further, some companies have found that the results of implicit bias training have been underwhelming, with little to no gains in diversity statistics. (These results may indicate that one or two training sessions are not enough—impactful change requires institutional adjustments). Additionally, anecdotal evidence suggests that educating people about implicit bias may result in an undesirable social norm because people who are told that a stereotypical belief is common are more likely to openly express that belief. People may also become defensive, seeking to invalidate the concept by arguing that it broadly paints everyone as racist, sexist or some other type of bigot. In short, the concept can be a divisive one in an already divisive environment.

However, research has confirmed time and again that disparate treatment, based a host of immutable characteristics like race and gender, persists. Unconscious bias manifests itself in measurable ways. Traditionally, the employer response to discrimination in the workplace has been reactive. In its 2016 report, Rebooting Workplace Harassment Prevention, the EEOC attempts to shift the focus from conduct that is illegal to conduct that is unwelcome as a starting point for addressing and preventing harassment and discrimination. Noting that unwelcome or offensive conduct can be “detrimental to an employee's work performance, professional advancement, and/or mental health,” the EEOC suggested that prevention efforts not focus exclusively on addressing only illegal conduct. Although the EEOC's report was prepared pre- #MeToo, it notes that there is a compelling business case for preventing workplace harassment and discrimination, including the reputational harm to individuals and to the employer. The EEOC suggests that key to this improved effort is a corporation's leadership holding managers accountable for ending discrimination. Further, to be effective, anti-discrimination training should emphasize workplace civility initiatives and bystander intervention strategies. The EEOC calls this reboot of harassment training the “It's on Us” campaign.

Central to the EEOC's campaign is the finding that workplaces that are not tolerant of harassment have less of it. This means that ending harassment and discrimination in the workplace requires a “top down” approach that has the unqualified buy in and support of the employer's top levels of leadership, including the senior executive team and C-suite employees. With respect to the Starbucks example, its CEO, Kevin Johnson, has been very public in his support of the racial bias training and described the session planned for May 29, as “just one step in a journey that requires dedication at every level of our company.”

Ultimately, this training seeks to help employees recognize the influence of implicit biases on their everyday lives and, ideally, make better conscious choices. If implicit bias training allows employers to introduce the delicate topic of discrimination in a nonthreatening and nonaccusatory manner, while educating individuals about unconscious associations and reactions, it could be a catalyst to more meaningful, engaged, and productive discussions about the persistent problem of workplace discrimination.

Implicit bias training has been shown to create and increase awareness of bias and, in the process, make people act less biased, clearly a desirable result. Increased self-awareness can be a critical factor in creating and maintaining a workplace culture that is respectful and harmonious. Further, bias training, paired with training on bystander intervention strategies, may help people to recognize the bias they see around them and intervene to promote workplace respect and civility.

Given that business is now global and workplaces are more diverse than ever, employers should endeavor to be more creative and collaborative and less reactive in addressing workplace culture and discrimination issues. More effective training will be less reactive and less focused on addressing only legally actionable conduct. Instead, more effective anti-discrimination training would encourage all employees to take ownership of workplace culture issues. Employers should consider implementing training that focuses on promoting a respectful and harmonious work environment, and not solely on avoiding liability. Implicit bias training may be a valuable tool in achieving this goal.

Erika Royal is a labor and employment partner in Holland & Knight's Fort Lauderdale office who works with clients to develop workplace culture training focused on inclusivity and accountability.