28 February 2024
5 min read
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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”.
In the Victorian Court of Appeal decision, Austin Health v Tsikos [2023] VSCA 82 (Austin Health v Tsikos), the Court confirmed that a breach of the Equal Opportunity Act 2010 (VIC) (EO Act) might be established if a court or tribunal found there to be discriminatory unconscious bias by the employer. With the introduction of a positive duty under the Respect@Work laws, employers should look to train managers regarding the impact of their unconscious biases in the workplace.
Biases are often thought about as an intentional act or prejudice against someone, but sometimes biases occur without conscious realisation. Our unconscious biases are influenced by our background, culture, societal context and personal experiences, and are held at the subconscious level. Unconscious biases can be about someone’s age, sex, race, disability, sexual orientation or parental status – just to name a few.
Unconscious biases can influence an employer’s decision-making process, including in areas such as recruiting, promotion, resourcing, reward and recognition, performance management and restructures.
For example, unconscious bias can influence recruitment through biases known as ‘confirmation bias’ 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. Often this will mean that an employer is looking for information to confirm their bias rather than testing each candidate objectively.
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 was a question as to whether a decision influenced by unconscious bias can amount to discrimination under State and Commonwealth discrimination laws.
Discrimination laws prohibit conduct taken ‘by reason of’, ‘because of’, or ‘based on’ a prohibited ground, such as age, sex, disability, race or sexual orientation (noting the wording of the direct discrimination provisions vary between acts). Given that the intention of the discriminator is not relevant to establish liability, on one view, the drafting of the direct discrimination provisions in the State and Commonwealth discrimination laws are arguably broad enough for a court to consider unconscious biases. This is because it does not matter what leads to the discrimination, it is just the fact that it has occurred. Austin Health v Tsikos confirmed that the EO Act did not preclude a court or tribunal from making a finding of unintentional discrimination or unconscious bias.
In Austin Health v Tsikos, Ms Tsikos alleged in the Victorian Civil and Administration Tribunal that she was treated unfavourably because of her age and sex, in circumstances where:
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.”
On appeal, the Supreme Court found that as “it was a complaint of systemic discrimination by a large organisation”, it “could not be reduced to a few isolated interactions with specific individuals” and that “other matters were also relevant”. Meaning that it was open to the court to consider other matters such as “Dr Whelan’s observation that a greater proportion of Austin Health’s male employees than female employees are paid over-agreement remuneration”.
In April 2023, after a further appeal from the Supreme Court, the Court of Appeal of Victoria handed down its decision which upheld the decision of the Supreme Court. The Supreme Court found that 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”. Meaning, a court or tribunal can make a finding of unintentional discrimination or unconscious bias under the EO Act.
The recent Respect@Work changes introduced a positive duty into the Sex Discrimination Act 1984 (Cth)(SD Act) which extends to addressing the impact of unconscious bias. The duty is for an employer or person undertaking a business or undertaking to take “reasonable and proportionate measures” to eliminate:
The Australian Human Rights Commission (AHRC) has released ‘Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth)’ (Guidelines) 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 be resulting in discriminatory conduct.
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Disclaimer
The 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.
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