The Huffington Post recently ran a story about unconscious bias in the workplace and how it impacts women in something as seemingly simple as the language used in job postings.   I loved the piece and thought they did a good job of addressing some of the subtleties that make outcomes for women in the workplace —or even in the job hunt—so different than that of men.

Then I read the comments posted at the bottom in response to the article.

How depressing.

Most of them were about how stupid the research was because it meant it was saying that women weren’t capable of being the things the article said were words more likely to discourage women from applying because they understood them to mean the employer was looking for a man to fill the position. One commenter even accused academics of being the reason for this foolishness.  Disturbed, I sent the link to the head of Women’s Studies and our Vice President for Institutional Diversity and reminded them that we had so much work to do, though I know they are already intensely aware.

So much of what was said in the comments was based on misinformation that after I gave myself some time to cool down, I began writing a comment myself in order to try to bring some understanding to the issue.  As is often the case, I felt like we take our own personal reality as the entire picture and run with it.  But, what we don’t know can make a huge difference in our position.  It was clear that the commenters did not have the full picture.  But, since these are not simple issues, I found that in order to do it any justice, it would take more space than a comment should.  So, I decided to blog about it and cut and pasted it here.

I had had the same reaction earlier in the week when I read the comments in the NY Times and Fortune magazine stories about the U.S. Supreme Court’s decision in EEOC v. Abercrombie & Fitch, finding for the employee against A&F clothing stores after the applicant sued A&F when A&F refused to hire her because she wore a hijab. The hijab was in conflict with A&F’s policy of not wearing hats, regardless of whether it was for religious reasons.  They argued they shouldn’t be held responsible if she did not tell them of the religious conflict.  But no one ever asked her about it and it was clear that the interviewer suspected it was worn for religious reasons. When the interviewer’s district manager told her the rule about conflicting with their policy and she said she thought the scarf was for religious reasons, he said it didn’t matter, it violated their policy and not to hire her.  This is illegal.

In announcing the very-rare-these-days 8-1 decision, even the Supreme Court said, “This is an easy one.” Clarence Thomas was the only hold out on the decision (it pains me to even put the world “Justice” before his name—-don’t get me started on that man…).  Let me just say that in the past 20 years he’s been on the bench, I have had reason to re-think the saying I use about there always being a bright side, “even a broken watch is right twice a day.”

Easy. As well it was. The decision totally upheld the law, as well it should. If you want to change the law, have at it but that’s another issue. In its present state, this is covered by the law and the Court was right in its conclusion (I have some issue with the way it got there and the concurrences, but that’s legal stuff).

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of race, color, religion, national origin, and gender (including pregnancy, sexual harassment and gender identity).  Other statutes have added the categories of age, genetic predisposition and disabilities to that list.  Religious conflicts in the workplace must be accommodated by an employer unless to do so would cause the employer undue hardship.  If the employer can demonstrate that it causes undue hardship based on factors set out for determining that, the employer has no duty to accommodate.

When Title VII was enacted 51 years ago, and in the ensuing regulations set out by the Equal Employment Opportunity Commission (EEOC) the agency responsible for enforcing the law, it was clear that if  the law was to be effective then employers would not be able to use as a defense to discrimination claims reasons such as customer preference (“No one will come to our store unless we discriminate.”—sound familiar?  It should.  It’s much like the present RFRA – Religious Freedom Restoration Act laws presently sweeping the country) or marketing schemes (“We only hire females as flight attendants because we have mostly male business travelers and that’s what attracts them to us.”).  Of course, you can easily understand why.  Since Jim Crow segregation was the law of the land at the time Title VII was passed, either formally or informally, de facto or de jure, though just as ironclad, if such defenses for employers’ discrimination had been allowed, we’d still be seeing segregated facilities today.

Religious discrimination includes not only a stated preference for one religious group  or another (fairly rare), but also conflicts in workplace policies based on religion (the usual basis).  Here, it was a policy not allowing the wearing of head gear even when it was for religious purposes.  If A&F could show that trying to accommodate the wearing of the scarf caused A&F an undue hardship, it would be able to keep its rule intact.  If not, the rule has to go.  A&F could, of course, show no undue hardship since there isn’t one as required by law.  It is simply part of a marketing scheme it prefers.  Since marketing schemes that violate Title VII are not protected by law, it had no legal basis for its refusal to hire.  Simple as that. Clear as a bell.

Or so I thought.

It was clear from the 500+  comments I read between the two pieces that very few people understand Title VII and how it operates.  They took for granted that a business’s marketing schemes and policies are somehow sacrosanct and above the law.  Once they are there, that’s it.  They must be obeyed.  That is so not true. There is no legal protection for marketing schemes or workplace policies and certainly not when they violate the law. Owning a business does not give a business owner the inalienable right to do whatever they want as many apparently thought.  They also did not realize that Title VII applies to both private as well as public employers.  And let’s not even get into their belief that religion has no place in the workplace equation at all, totally ignoring the fact that it was Congress that included the category in the law on employment discrimination i the first place—for reasons that I would hope we could all agree with.

Oh, it was ugly.

It scared me to think about this being a democracy based on people’s informed input about issues and that they could be so wrong about such a basic law that has been on the books for 51 years this July 2015.  This year is the 50th anniversary of its effective date (it was passed in July of 1964 and became effective in July 1965).   Think about what happens when people vote in a referendum or vote for candidates with such little understanding of what it is they are doing—thinking they absolutely know all there is to know.  These comments were forceful and solid and stated as fact, not opinion.

And absolutely wrong.

They were based on the commenters’ total lack of knowledge of, or misunderstanding of, the law.

The emails between my co-author and I were really spirited and interesting since we author the best-selling Employment Law text in the country.  But neither of us is eggheads up in some academic tower somewhere.  We both teach and do consulting in workplaces, so we are very much in touch with those who do not know.  We get that all the time.  That’s why we do what we do.  But the difference may be that these folks making comments not only didn’t even know they didn’t know, but they were imperious about it.  They absolutely thought they had it right.  And there were so very many of them.

So, I was still reeling from that little fiasco when when I read the comments in the Huffington Post story about the job ad language.  I think that adding to my distress was that I thought I would be reading the reactions of a group of what I would have thought would have been fairly informed, discerning, in-the-know readers, given what I perceived to be the readership of all three of those outlets.  But, there I was, hit with this latest reaction to a good and accurate piece about impediments to employment for all based on the laws on the books and it too was being lambasted.

As an “academic” accused of being responsible for attention to things that impact the workplace like the unconscious bias represented by this article, I feel the need to say something. Most of us walk around in our lives experiencing our own realities and we often don’t really think an awful lot about much outside of that. Our reality is made up of our experiences and those of our friends or others we are connected to or exposed to and it is that reality that shapes our experience and our lives. Not only do each of us have different realities, but there is also operating outside of all of this, another, greater reality made up of pretty much all of it.

It’s sort of like those pictures you’ve probably seen made up of tiny little pictures that you don’t realize are separate little photos until you get up close and see it. Each “pixel” of the photo is actually a photo itself, but they all come together to make the single photo we originally see. I think we would all agree that once we see what’s going on, we now know that there are actually two versions of what we initially thought was only one.

Most of us deal with our pixel and those around us. Academics deal with those also, but they also deal with the big picture. I think we can also agree that seeing our own pixel and even those close around us gives us one version of reality, but, as it turns out, that is not the only one. The big picture exists also. If you’re in your own pixel, it makes sense that you may not be able to see all the others that make up the entire photo—until it is brought to your attention. Much like going up in a plane gives you a very different view of where you may have been located than just walking around your neighborhood.

Again, both are accurate realities, but just different ones. We have to make sure that we understand we are operating with both. What people have said makes perfect sense in the little pixel sense. They simply don’t deal with the bigger picture that academics do. Nothing whatsoever wrong with that. But, we need to recognize the difference and also that it can impact what we know.

Those of us who study these issues understand the impact of implicit bias and how adversely it impacts women’s ability to move up in organizations the way their talents, experience and performance would otherwise have them do. Because we are teaching those about to go into this world, it pains us greatly to find what we do.  For most of us there is no negative and nefarious “agenda” that shapes what we go looking for. It’s more like the other way around, in that what we find makes us want to have an agenda so we can fix it.

Having students means we have real live people who are about to experience for themselves what we discover in our research and that hurts. We know these people.  We know how hard they’ve worked over the years to position themselves in the market, what they bring to a workplace and how much they have to offer. But, we also know the overall reality of how they will often be received.

Also, as someone who does consulting in the workplace on these issues, I also get to see it from the other side.

I listen to the managers and business owners who tell me they didn’t give a raise to the next in line who is qualified for it because it’s a woman and she’s married, so she doesn’t need the money. Or that a promotion would mean she’d have to travel and if it was his wife “he wouldn’t want her schlepping around in strange airports at all times of the night.”

At the same time, I’ve had a graduating MBA student tell me she received an offer from the place she’d been interning for a year and they told her they loved her work so much that had she been a man, they would have offered to pay her 50% more. They actually told her that.  Or the one who, at the end of the post-internship offer meeting had the owner tell her that one of the things she now needed to do as an employee is to find an apartment to rent out for them to have sex. When, confused, she said she had a house and a husband, he said “Me too. What’s your point?” Let’s not even talk about the one who arrived at work the first day, only to be told by her boss that one of her responsibilities would be to let him smell her underwear every morning.

So, for us academics to discover these things through research like that which served as the basis for the piece, or whatever other ways we discover our subject matter, and to try to do what we can to make things better, including bringing it to light, then be castigated for it by the public, is, under these circumstances, simply unknowing.  That is about as charitable as I can be.

Think about that the next time you get ready to vote on an issue or even comment on something in the public sphere.  Do you really know what you need to know in order to  have the opinion you do, or are you just using anecdotal evidence that may not be the whole story?  Or repeating what you friends or family told you as if it’s fact? And certainly before you vote on something that may deprive others of a much-needed service or take away something they need, do you really have all you need to know to vote or are you just winging it, thinking you know it all based on what your friends have said about it, or that it won’t matter in the end?  If you are mistaken in something you pass off as fact,  please remain open to the idea that someone who may know more may be able to correct you.  That’s fine.  Being corrected by someone who may know more is all part of the process of public discussion of issues of the day. Lord knows, I learn from my students and everybody else in the world every single day. And I am glad to do so. But thinking your opinion is absolutely correct and not subject to correction degrades the whole process.

It is our responsibility as participants in a democracy to base our public decisions (including comments in the public sphere) on good information and analysis.  It’s the price you pay for living in a democracy.  A dictatorship makes it nice and easy.  You don’t have to do any thinking because it’s all done for you.  But, that’s not what we do in America.  We vote on issues.  Part of that is knowing what they are in the first place and engaging in public discourse.  One of the ways to get that is to be willing to put yourself out there, then be willing to change your views as you learn additional credible information that could impact your view.

Giving both your opinion as well as the corrective information should be done in a kind, helpful, non-judgmenta, and certainly non-condescending way.  It’s just providing information.  Why are so many people so negative and nasty when they do it in these public forums?  I don’t get it.  What does it cost to be respectful to someone?  Why in the world wouldn’t you do that? Why wouldn’t we want to live in a world that treats people that way?  Why wouldn’t we ourselves do it?

If we can’t use these public forums for places of a pleasant gathering of knowledge of public information and discourse, then at the very least, don’t nastily pass off what you know as absolute, irrefutable fact.