Unconscious bias: what can we learn from media and advertising?

21 June 2019 | Applicable law: England and Wales


This time last week, the UK Advertising Standards Authority (ASA) introduced a new rule banning adverts which feature gender stereotypes that 'are likely to cause harm, or serious widespread offence'. The ban follows a review by the ASA into gender stereotyping in adverts, which found evidence that harmful stereotypes 'can be reinforced by some advertising, which plays a part in unequal gender outcomes'. In a similar vein, this week, the Head of ITV comedy said she would no longer commission shows written exclusively by men in order to move away from the gender imbalance in writing rooms. Hopefully, these changes will mark the end of misogynistic billboards asking women if they are 'beach body ready' and patronising TV commercials showing dads struggling with nappy duty and lead to a shift away from the gender imbalance on screen and in media. But do advertising and entertainment really have an impact on how we think and act in other contexts?

Unconscious bias

The ASA's ban and ITV's new approach are relatively small steps towards addressing a systemic issue. But they demonstrate an increasing awareness of how the media we are exposed to can influence not only our overt behaviour in terms of the protein shake or nappy brand we buy, but also reinforce unconscious biases that manifest themselves in our everyday lives. This includes our behaviour and the decisions we make in the workplace – whether in relation to recruitment, or staff development and recognition. Unconscious biases are usually harder to identify, and harder to address, than overt stereotypes because although they are based on an individual's own experiences, the individual will be unaware of their own biases unless they are trained to recognise them.

Is unconscious bias discriminatory?

Unconscious bias can be discriminatory if it relates to a protected characteristic, such as gender, age, race, sexual orientation or disability. For example, if a man ignores the skills and experience of a woman during a promotion round and appoints another male candidate, this could be discriminatory. The Equality and Human Rights Commission (EHRC) Code of Practice highlights that whilst the relevant protected characteristic needs to be the cause of the less favourable treatment in order to amount to discrimination, it need not be the only or even the main cause. Nor does it need to be explicit or even conscious: an unconscious assumption, misconception or perception can still taint a decision with discrimination.

Unconscious bias in the tribunal

Recent case law has served as a reminder that unreasonable behaviour which is not explained by non-discriminatory factors may well give rise to a finding of unconscious bias. Earlier this year, in The Governing Body of Tywyn Primary School v Aplin, the Employment Appeal Tribunal (EAT) found that discrimination could be inferred from the facts. Mr Aplin was an openly gay head teacher and was dismissed on the grounds of gross misconduct on the basis that his conduct outside of work had brought the school into disrepute. The investigating officer was found to have displayed a striking lack of objectivity in his approach and the tribunal concluded he had shown unconscious bias. On appeal, the EAT held the tribunal had been entitled to find that the school's failings during the disciplinary process were so egregious that an inference could be drawn that sexual orientation discrimination had played a part.

What can we learn?

We can see from the changes being implemented in the media and advertising industries that steps need to be taken – on a personal and organisational level – to empower social change and move away from stereotypes. Not being exposed to baby milk adverts that show baby girls growing up to be ballerinas and baby boys growing up to be mountain climbers and engineers will help on a personal level, but how can unconscious bias be addressed in the workplace?

Raise awareness

Most employers will train managers on well-known issues such as bullying and harassment, but few dedicate time to train staff specifically on unconscious bias. Training will enable managers to understand unconscious bias and encourage them to question their own prejudices, challenge their 'gut reaction' decisions and be more aware of first impressions in decision-making.  Unconscious biases usually result from misconceptions, so increasing the visibility of underrepresented groups should also help to promote diversity and equality.

Support decision makers

Some organisations are encouraging staff to take tests in an effort to actively tackle the issue of unconscious bias, for example the Harvard University Implicit Association Tests (the Harvard IAT). Although such tests are enlightening, they should be performed in conjunction with appropriate training so that participants are not unsettled by their biases and can use their results constructively.

Two heads are better

Follow ITV's lead and ensure that, wherever possible, more than one person is involved in decisions, especially in recruitment decisions. Having a second person in the hiring process introduces a different outlook, which should help ensure that decisions are objective and logical and not influenced by one individual's misconceptions.

Avoid 'groupthink'

'Affinity bias' means we tend to surround ourselves with similar people. Whilst two heads should be better than one, shared-decision making can result in groupthink, which may have unintended consequences. Unconscious bias will be better challenged if there is evidence that the decision makers were diverse and brought with them a variety of different perspectives.

Focus on consistency

Having robust policies and procedures in place will help to eliminate personal bias from decision making. It is rare that a decision will not involve an element of subjectivity, however, ensuring processes are underpinned by an objective framework is helpful in minimising the risk of discrimination.

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This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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