DO I HAVE A DISCRIMINATION CLAIM EVEN IF MY SUPERVISOR IS NOT AWARE OF HIS DISCRIMINATORY BIAS AGAINST ME?

The answer is yes. Sometimes supervisors penalize employees at work, due to their race, gender, sexual orientation, or disability, for example, even without knowing that they are doing it. When this happens, it is usually because the supervisor has a “cognitive” or “implicit” bias against the employee’s protected characteristic (e.g. race, gender, sexual orientation, or disability) that is based on an outdated cultural norm or a negative stereotype associated with the characteristic. An example might be a male executive, unjustly disciplining his female manager for her direct criticisms of her supervisees, due to his unconsciously held, stereotypical belief that women are not supposed to be forward and critical but are instead supposed to be passive and nurturing.

Our anti-discrimination laws for employment, N.H. RSA 354-A and federal, Title VII, prohibit “intentional discrimination” against individual employees. However, curiously, the EEOC (the agency that enforces Title VII) defines “intentional discrimination” as including “not only … animosity, but also conscious or unconscious stereotypes about the abilities, traits, or performance of individuals of certain … groups.” Similarly, our federal, First Circuit appellate court has pronounced “that unlawful discrimination can stem from stereotypes and other types of cognitive biases, as well as from conscious animus.” See Thomas v. Eastman Kodak Co., 183 F.3d 38, 59 (1st Cir. 1999).

If you have questions about discrimination or retaliation in your workplace, please contact our office for a free consultation at 1-800-240-1988 or fill out our online contact form.

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