Employment discrimination need not be blatant to be considered illegal; even subtle instances could lead to a successful claim. That’s what the plaintiff in Marsian v. Springfield Transit Management, Inc., 28 MDLR 29 (2006) found out when she sued Springfield Transit for discrimination on the basis of gender in determining promotions.

The Respondent admittedly used subjective and intangible methods, rather than outright discrimination, to decide whether Marsian was eligible for employment, and failed to document this criteria. Moreover, the court found evidence that male employees were repeatedly credited for their work experience while the plaintiff’s experience and misconduct was treated differently.

Cases similar to Marsian reveal an increasingly prevalent occurrence in employment discrimination involving a type of departure from the traditional, outright and direct forms of discrimination that highlighted the 60’s and 70’s and still exist today. Rather, this sort of discrimination, termed unconscious bias or subconscious discrimination, is masked in subtlety, often taking shape unbeknownst to the supervisor, manager or co-worker whose acts are in question.

The Subtle Nature of Subconscious Discrimination

The nature of subconscious discrimination often creates an atmosphere of prejudice and intolerance in the workplace that, though hard to articulate, is still very real. In March last year, the EEOC brought together prominent federal scholars and researchers to examine the nature of unconscious bias and released a report revealing that unconscious bias towards African-Americans in the workplace is still an all too prevalent fixture.

The report defined unconscious bias as “social behavior driven by learned stereotypes that operate automatically and therefore unconsciously when we interact with other people.” According to the researchers, prejudices in the workplace are the unconscious by-products of stereotypical mental processing and associations, “of which the prejudiced subject may be completely unaware.”

In Marsian, the Massachusetts Commission Against Discrimination expounded on the subtle form of discrimination, ruling that, “the fact that the decision-maker may not have been aware of that motivation, even within himself, neither alters the fact of its existence nor excuses it.” While this may at first seem a narrow take on an intangible hardly capable of being backed up with evidence in court, researchers contend that it is both real and intensely detrimental to the workplace, despite the challenges involved in proving its existence.

Proving Subconscious Discrimination

The fact that subconscious discrimination is difficult to prove is a factor that can make subtle discrimination much more damaging than direct or outright discrimination. However, evidence for subtle discrimination is not as hard to come by as one might think. Instances of subtle discrimination are often proven with both direct evidence, evidence that reflects the defendant’s state of mind, as well as circumstantial evidence, evidence that reflects the atmosphere of the workplace at the time of discrimination.

Written statements such as memos, conversation notes, emails and letters constitute direct evidence. This is because such documents are witnessed forms of evidence. In addition, evidence allowing courts to draw an inference of discrimination will prove subtle discrimination. For instance, in disparate impact cases where unintentional discrimination is at the heart of a claim, statistical evidence of the adverse impact on a protected class is acceptable evidence.

Subconscious Discrimination in the Courts

Once plaintiffs establish the existence of subconscious discrimination, many courts are no less reluctant to find that it’s illegal. The federal court in Eastman v. Kodak, 183 F.3d 38 (1st. Cir. 1999), addressed the often elusive, yet still profoundly illegal, nature of subconscious discrimination in employment evaluations, finding that discrimination because of race in particular can exist “regardless of whether the employer consciously intended to base the evaluations on race, or did so because of unconscious stereotypes or bias.”

Beyond race, courts have also recognized subtle discrimination in protected categories such as age and gender. The 8th Circuit recognized that “[a]ge discrimination is often subtle” in Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061 (8th Cir. 1988), and in Pitre v. West. Electric Co., 843 F.2d 1262 (10th Cir. 1988) the 10th Circuit Court noted the prevalence of sex discrimination, “whether conscious or unconscious” in the evaluation of female employees.

In disparate impact cases, courts have routinely recognized the unintentional nature of discrimination as a foundational aspect of the claim. In EEOC v. Inland Marine Industries, 729 F.2d 1229 (9th Cir. 1984), the African-American plaintiff charged his company with racial discrimination in wage setting criteria in violation of Title VII and Section 1981 of the Civil Rights Act of 1964.

The court reasoned that even though the district court found the intent to discriminate was a subtle one, it was nonetheless discriminatory intent. Here, the defendant repeatedly refused to correct a persistent and systemic practice of wage disparity which negatively affected African-American employees, even after opportunities for change were consistently presented. The court noted that the “benign mask” of racial discrimination in today’s world often means that seemingly harmless acts “may hide subconscious attitudes and perpetuate the effects of past discrimination.”

Remedying Increasingly Subtle Discrimination

Though, subtle discrimination can be difficult to prove due to its intangible nature, it is not impossible, and it is no less egregious in its treatment and effect on the behavior and attitude of workers from all walks of life. Employees should know that courts have been vocal in the past about the illegality of such forms of discrimination, and will likely continue to consistently hold against them as discrimination continues to take on ever more subtle characteristics.