Virtually all states in the U.S., at a minimum, recommend that employers conduct anti-harassment and anti-discrimination training for their employees, and several states – such as California, the District of Columbia, New Jersey, New York, and Pennsylvania, among others – mandate that certain employers provide such training to their employees. As anti-harassment and anti-discrimination training becomes more prevalent across the country, and as issues like racial and gender inequality become increasingly important both within and outside the workplace, the subject matter of this training is evolving. Increasingly, employers are incorporating "implicit bias" or "unconscious bias" training into their anti-harassment and anti-discrimination training, and with good reason, since the Equal Employment Opportunity Commission has included unconscious bias within its definition of discrimination for a long time and plaintiff's attorneys are arguing implicit bias in discrimination lawsuits with increasing frequency.
State and city governments are trending toward legislating implicit bias training requirements for certain professionals. For example, California has enacted a law requiring that all continuing education programs for physicians, surgeons, and nurses incorporate implicit bias training within the next two years. California has also introduced a bill that would mandate real estate brokers and salespersons to complete a two-hour course on implicit bias as part of their continuing education requirements. Similarly, Michigan has implemented new agency rules requiring implicit bias training for all licensed or registered healthcare professionals as of June 1, 2022, and Connecticut and New Jersey have mandated implicit bias training for police officers. In New York, proposed legislation has been introduced that would require that real estate brokers and salespersons receive at least two hours of implicit bias training as part of their license renewal process, and that physicians, physician assistants, and nurses receive diversity, inclusion, and elimination of bias training as part of their continuing education requirements.
While implicit bias training legal mandates have not yet hit employers in every state and industry, the above examples demonstrate that the issue of implicit bias is increasingly on lawmakers' minds. The reason is clear: every individual is affected by internal biases that can negatively impact relations between employees, clients, vendors, and consultants. By educating and engaging in meaningful discussions with employees about implicit bias through formalized training, employers can help prevent unconscious discriminatory and harassing behavior in their workplaces and the lawsuits that inevitably result from such behavior.
Employers should be aware that implicit bias training can be controversial when implemented in the workplace, because many employees strongly believe they harbor no biases at all. But there are various methods employers can use to effectively incorporate implicit bias training directly into their existing anti-harassment and anti-discrimination training. Training often emphasizes that the first step toward addressing implicit bias is acknowledging that it exists and identifying practical tools for addressing our unintentional biases. Implicit bias training typically includes scenarios illustrating how the mind operates outside of one's conscious awareness or control. These scenarios help demonstrate that individuals sometimes act on snap judgments based on another's (protected) characteristics, such as race, age, gender, national origin, or religion, without conscious discriminatory intent.
Employers already in the process of revising their anti-harassment and anti-discrimination training, or who are interested in improving their training or getting ahead of this growing legal trend, should contact Venable's Labor and Employment Group to discuss whether incorporating implicit bias training makes sense for their workforce and workplace. Venable is continuing to monitor legal requirements in this space and will provide relevant updates to clients as they become available.