News & Insights

Subconscious Discrimination – is it Distinct?

In light of the recent case of Kohli v Department for International Trade, we consider the legal status of subconscious discrimination, and whether it can be distinguished from other forms of discriminatory treatment.

Back in January, we briefly touched on the topic of subconscious discrimination in the context of the D K Sharma v University of Portsmouth case, which involved racial basis during a recruitment process. You can read more about that case here.

The two main forms of discrimination prohibited under the Equality Act are direct discrimination and indirect discrimination – we have already addressed the distinction between these in another article – although the Equality Act also prohibits victimisation and harassment, which can have discriminatory elements.

However, subconscious discrimination is not, in itself, a distinct form of discrimination. Rather, it refers to the motivations of the discriminating individual, and the fact that they are not consciously treating someone differently because of a protected characteristic, but have instead been influenced to do so by their own unconscious bias.

In Kohli v Department for International Trade, Ms Kohli, a Department for International Trade (DIT) employee of Indian origin, was awarded a poor appraisal grade and denied various internal roles at the DIT. Ms Kohli alleged that this was because of her race, and brought a direct discrimination claim against the DIT.

The Employment Tribunal dismissed Ms Kohli’s claims, finding non-discriminatory reasons for all of the DIT’s actions. Ms Kohli appealed to the Employment Appeal Tribunal (EAT), arguing that the Employment Tribunal had failed to properly address the question of subconscious discrimination.

The EAT held that tribunals should consider the “reason why”, to determine whether the alleged discriminator took certain actions because of the employee’s protected characteristic. However, the EAT clarified that this does not mean that tribunals must expressly and separately consider the possibility of subconscious discrimination in each case. The Employment Tribunal would only have been in error had it ignored evidence indicating subconscious discrimination was at play – and the mere existence of unreasonable conduct alone does not suggest unconscious bias on the part of the employer.

The EAT also held that, once a tribunal has determined the true, non-discriminatory reason for an employer’s actions, there will be little room for a finding of subconscious discrimination – unless this “true reason” was itself rooted in subconscious bias of some form, such as racial stereotypes. However, in this case, there was nothing to suggest that stereotypes about people of Indian origin were relevant, nor was there anything to indicate that Ms Kohli’s Indian origins in any way played a part in the decisions made about her.

As such, the Employment Tribunal’s failure to separately and expressly consider the possibility of subconscious discrimination was not an error of law, and Ms Kohli’s appeal was dismissed.

This case reiterates that subconscious discrimination is not a distinct category of discrimination and will instead be considered by tribunals as part of the whole of a direct discrimination claim, in trying to identify the “reason why”. However, where there is nothing to indicate the existence of subconscious discrimination and there are non-discriminatory explanations for an alleged discriminator’s behaviour, then there is no obligation on tribunals to expressly consider the possibility of subconscious discrimination.

Nevertheless, it is important to remember that whether discrimination is conscious and intentional, or a consequence of unconscious bias, it is still discrimination. It is therefore important to review your organisation’s recruitment, retention and career development practices and records, to ensure that no subconscious bias is creeping into the decision-making processes.

If you would like any advice regarding your organisation’s employment practices or a possible discrimination claim, please get in touch at [email protected]