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Addressing the gender pay gap
Companies that have successfully tackled the gender pay gap have highlighted the factors that can lead to gender pay gaps within an organisation. These include occupational segregation, unconscious bias and childcare. Commentators also accept that there are internal and external factors driving the gender pay gap. By their nature, internal factors should be within the employer’s control, while external factors may be more difficult to influence. One of the key factors influencing the gender pay gap appears to be unconscious bias in the workplace. When Irish companies are required to publish their first gender pay gap reports in December 2022, it is likely to be cited as one of the factors driving the gender pay gap in certain organisations.
Unconscious bias
Unconscious bias is a bias in favor of a person or group over another person or group that is implicit. It is perfectly normal for a person to hold unconscious beliefs about different social or identity groups without being aware of these biases. Individuals are often unaware of their biases, making these issues difficult to resolve.
Unconscious bias can take many forms, such as affinity bias, confirmation bias, conformity bias, or gender bias. Affinity bias occurs when a person feels a connection to another person because of similarities they possess. Confirmation bias occurs when a person makes assumptions about others based on their own beliefs and biases. Conformity bias occurs when someone adopts their behavior to conform to a group. Gender bias simply occurs when a person is treated differently based on gender identity or gender expression.
Unconscious Bias Legislation
The Employment Equality Acts 1998 – 2005 prohibit discrimination against employees on the following grounds: sex, marital status, marital status, sexual orientation, religion, age, disability, race and membership of the Traveler community. Discrimination is defined as less favorable treatment. Such discrimination may be direct, indirect or imputed. Equality legislation by its very nature addresses unfavorable treatment or behaviour. However, it does not address the issue of implicit beliefs held by individuals that may create this behavior, intentionally or unintentionally. If unconscious bias exists in an organization and dictates its policies, it can affect all aspects of that organization from hiring to promotion and termination, and can undermine that organization’s culture and goals.
court practice
Unfortunately, there has been relatively limited discussion of unconscious bias in employment jurisprudence to date. For the most part, this topic has been raised in the context of equality claims. It should be noted that unconscious bias was raised back in 2011 in the case of St Andrew’s College Dublin V MacCabe Coigligh and MacGeralt EDA 1313/2013 where the Labor Court indicated that the promotion board’s decision not to conduct interviews resulted in a lack of transparency and ” raised the possibility of unconscious age bias influencing her decisions“. Although the Labor Court decided in favor of the employer, it recommended that all members of the interview committee be trained in the requirements of the Equality Act and provided with identification and elimination techniques “personal, cultural and societal biases“, which may lead to discrimination.
Unconscious bias was again mentioned in the case of
Eileen Owens v Guinness Storehouse Ltd ADJ – 00014909/2018. In this case, the plaintiff alleged age discrimination in the interview process. In this case, a member of the interviewing committee asked the candidate how he would deal with this “young”Workplace. The employer’s defense to the charge of discrimination was that both members of the interviewing panel had completed training in unconscious bias and/or interviewing skills. Ultimately, the judge found that “knowingly or unknowingly, this question shows that age is a factor in the selection process, with a bias towards younger applicants”and ruled in favor of the plaintiff.
In a number of more recent cases, an employer has been able to rebut allegations of unconscious bias by presenting clear evidence of its policies and the enforcement of those policies by inquiry committees. In case of Chief Executive v State Department ADJ – 00025703/2020 plaintiff alleged age discrimination in an internal promotion process. She claims that many of her older colleagues see no point in applying for promotion as a department “doesn’t want to invest in older staff”. The employer provided evidence that members of the interviewing panel had completed anti-discrimination training and attended refresher training before the interviews began. All applicants were provided with identical interview preparation material. The applicant’s application form does not address the question of age and the interview committee does not know the age of the applicants. To be successful, applicants had to obtain 50 points in each category and achieve an overall score of 360. The Claimant’s overall score was 340. Credible evidence was provided at the hearing by the Chair of the Interview Panel who described her background and experience in training in stereotyping and dealing with conscious and unconscious biases. The judge accepted that in any organization there is a graded structure or hierarchy, which means that fewer people fill the higher grades and that there can be resentment among long-serving staff who have sought to move up but failed to do so . However, they did not accept that this meant that this organization was biased against longer serving staff.
In case of Desmond Furlong v Department of Transport ADJ – 00025061/2022 the plaintiff alleged discrimination on the basis of age and gender in the selection of candidates in a competition for promotion in the civil service. Claimant failed to reach the shortlist and appealed the decision through an informal section 7 review. The informal review was conducted by the Department’s Personnel Officer, who affirmed that decision. The plaintiff alleged that there was a policy of affirmative action in favor of women that was implemented in the selection process. This was denied by the employer. The employer also denied any bias in the process. Again, clear, consistent evidence was provided by the Department’s Personnel Officer, who confirmed that she was particularly careful in internal competitions that applications were judged on application alone. She pointed out that “unconscious bias was part of being human” and had advised the panel to guard against bias. In his decision, the judge acknowledged that unconscious bias can occur and stated that “discrimination is rarely overt” and can “it is not intentional, for example in the act of stereotypingHowever, based on the compelling evidence provided by the interview panel, they found in favor of the employer.
Discussions of unconscious bias in these cases highlighted the following issues:
- Actions resulting from conscious or unconscious bias can result in discrimination.
- Under equality legislation, there is no requirement that discriminatory behavior be intentional.
- Companies can guard against unconscious bias within the interview process by taking the following steps: providing training on unconscious bias to the panel/ensuring a balanced panel is appointed/using a clear assessment method such as point scoring that can is used to justify the decision/equal treatment of all applicants within the process (to include strict adherence to interview questions) and to remove demographic data from CVs or application forms.
Moving away from a culture of unconscious bias
Unconscious bias can affect all aspects of an organization’s decision-making process. If the chain of bias is not broken, it is likely to endure. There has been considerable discussion about identifying and eliminating bias in the workplace from both an inclusiveness and gender pay gap perspective. Research suggests strategies that can help identify and reduce bias in the workplace, as follows:
Awareness
Many companies have implemented unconscious bias training and diversity training to improve awareness and change behavior. This training serves to raise awareness in the workplace at all levels regarding the biases that may exist. The individual is then responsible for addressing their behavior and making more appropriate choices. Training alone is unlikely to solve the problem of unconscious bias, but it is a common starting point for organizations on this journey.
Recruitment process
It is suggested that unconscious bias can be removed from the hiring process by removing gender language from advertisements, advertising through new channels to attract more diverse candidates, using standardized interviews and scorecards, identifying objective criteria on skills base, removing identifying characteristics from CVs and ensuring interview panels are balanced, diverse and appropriately trained.
Policies
An organization’s policies are designed to reflect its culture and goals. For true organizational change to occur, businesses need to review these policies. Organizations should remove gender language from their policies and consider whether certain policies unduly favor or disadvantage certain groups. It is likely that gender pay gap reporting will highlight areas where improvements can be made once reporting begins.
Gaps in promotion
A promotion gap occurs when one group of people is promoted to higher positions more often than another. It is likely that accounting for the gender pay gap will identify promotion gaps in certain organizations. This would allow employers to set specific targets in areas where they are failing to achieve gender balance. Research shows that leadership, development training and mentoring or coaching programs targeting specific groups or providing role models for these groups can improve employee engagement and reduce these gaps.
Learning points
Employees are, by their very nature, human. For this reason, organizations must accept that unconscious bias is likely to exist. The goal of business is to identify these biases and reduce their impact on decision making. Although reporting the gender pay gap will impose a significant administrative burden on employers, research shows that it can be used as a positive tool to identify such biases and take positive action based on the data collected to align behavior with company culture.
Originally published by Industrial Relations News – IRN 37, 13 October 2022
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular circumstances.
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