3 Actions for Leaders to Improve DEI in the Workplace
Studies from the Gallup Center on Black Voices find that one in four Black employees in the U.S. have reported experiencing workplace discrimination in the past year and that Black women are less likely to feel they are treated with respect in the workplace. Disparities in the employee experience represent real, and potentially significant, differences in the way workers approach their jobs and their teams. And with a lack of diverse representation in leadership and only 42% of U.S. managers strongly agreeing that they are prepared to have meaningful conversations about race with their teams, it's increasingly important for leaders to consider the employee experience through a DEI lens.
Leaders need quantitative and qualitative data to describe the current state of the employee experience. That's necessary for setting realistic, impactful DEI goals and timeframes -- such as increasing the percentage of women and people of color in leadership positions over the next five years -- or building formal mentorship programs to promote development and advancement more equitably.
- First, identify DEI priorities based on a rigorous assessment of the organization's current state.
Gallup's Inclusion Index measures the three fundamental qualities of inclusive cultures: respect, strengths and trust -- and it identifies how they correlate to other key workplace enablers such as engagement, innovation and agility. Some of Gallup's Inclusion Index clients ask employees deeper questions about belongingness and equity, or study turnover, pay, development, mentorship, and other key elements of engagement. However, it's measured, data on the employee experience establish an objective and comprehensive baseline for each touchpoint of the employee life cycle.
Plans achieve priorities -- and people achieve plans. Once DEI priorities have been identified, leaders should select a dedicated team to steer, execute and champion a strategy that's tailored to the plan. Expect significant cross-functional collaboration on all DEI efforts, whether lead by a Chief Diversity Officer, ERG leader, HR leader, DEI Committee leader, or other business leader.
- Next, consider how the work will get done to create the organization's future state.
Some of Gallup's clients have found that dedicated DEI teams are more effective when they have:
No two businesses have identical DEI needs, and DEI priorities should always be aligned with organizational values and strategy. A sophisticated plan for execution is more than tailored -- it also generates excitement around DEI and leverages employees' innate strengths. For example, leaders might direct gifted communicators to explain DEI goals in ways that increase enthusiasm or involve the highly analytical to streamline workflows and design effective evaluation criteria.
- a structured DEI charter detailing the purpose of the work, processes, goals and a shared understanding of what success looks like
- executive sponsorship from a credible and committed senior leader who is willing to champion DEI efforts with other leaders and across the organization
- work team leaders from different parts of the business with specific roles and responsibilities, who collaborate and represent diverse voices at the organization
- financial and non-financial resources to support events and development activities
- access to leadership
- a communication plan to continually fuel organization wide awareness and a collective commitment to the work
- metrics that assess and report on progress on a regular basis (monthly, quarterly, etc.)
- mechanisms to gather employee feedback -- such as pulse surveys, listening posts, DEI questions in annual surveys -- gathered from all levels of the organization
Clear expectations support ongoing individual and collective dedication. Accountability embeds DEI in an organization's strategy. And both of these require leadership commitment. That is, accountability and expectations cascade from leaders who embody their dedication to DEI.
- Finally, plan to sustain momentum.
A leader's active, visible role in DEI efforts conveys the company's values, sets an example for employees, and helps sustain momentum. Leaders can show commitment through proactive communication and collaborative goal setting with their teams. It's also imperative that leaders’ practice what they preach -- for example, by offering flexible work arrangements and conducting nationwide candidate searches to diversify their talent pipeline. Employees take
their cues from leaders -- and gauge leaders' authenticity based on their actions, words and strategies.
A company's values will become part of the everyday experience when DEI leaders -- including executives, DEI team members, ERG members or functional leaders -- consistently relate how their efforts strengthen the organization's mission and values. All employees should take part in those conversations to attain buy-in, trust and shared commitment to the movement.
Employees take their cues from leaders -- and gauge leaders' authenticity based on their actions, words and strategies.
Leaders have a responsibility to take steps toward a more diverse, equitable and inclusive culture. In turn, businesses will benefit because inclusive, respectful workplaces become magnets for diverse talent, and employees who can be themselves and feel respected perform better, are more engaged, and have higher wellbeing.
With leaders' dedication and the right culture to support DEI, companies can create a special employee experience. One where workers feel comfortable being themselves and are free to leverage their unique talents to help the organization succeed.
Three Ways HR Can Get Better at Age Inclusivity
According to data released in Workforce’s 2019 Ageism in the Workplace Study, the number of age-related discrimination charges filed with employers and the EEOC by workers aged 65-plus doubled from 1990 to 2017.
The same study noted that 44% of employees reported that they or someone they knew had experienced age discrimination in the workplace, whilst 21% said they had faced age discrimination themselves.
Change our thinking about changing jobs
“We need opportunities to change jobs no matter our age, whether to progress, take on new challenges, or balance work with other needs,” Thomson said, who noted that often, age and perceived seniority can prevent older workers from being able to transform their own career.
“People need to move, up, down or sideways based on where they are in their life or their career, but they are often stuck because they are seen as too experienced, set in their ways, or lacking potential,” he explained.
As such, HR and employers should look to transform biases and therefore their mindset when reviewing the potential for older candidates.
The concept of someone being ‘too experienced’ or ‘too old to learn new skills’ is untrue and
Older people feel unable to move
“A quarter of over 50s in our survey said they had wanted to move jobs, but felt unable to do so because of their age,” Thomson added.
“It is little wonder then that only 0.23% of people over the age of 50 voluntarily move jobs each quarter – less than half the rate of people in their 30s and 40s. This results in a lack of job mobility and people being stuck in jobs that become unsustainable,” he adds.
This puts the onus on HR to therefore ensure that continuous learning is taking place regardless of age or seniority, giving older workers the chance to expand their skillsets, and therefore opportunities to move roles.
Time is of the essence for employers and recruits alike
“Missing out on the best candidate, failing to represent customers and having a less diverse
workforce all have business costs,” Thomson explained.
“In terms of the bottom line, a poor hire at middle-management level is estimated to cost a business over £130,000 to resolve. As employers try to recover these are costs they can’t afford.”
So, not only does discounting a significant portion of the workforce damage their own career path, but it can also lead to significant negative financial ramifications to the business.
“…With half of UK employers planning to recruit this year, we need to make sure that we hire
back better, for everyone, whatever their age,” Thompson concluded.
CROWN Act Would Ban Discrimination Against Black Hairstyles In Wisconsin
Black people couldn't be discriminated against because of their hairstyles under a bill being considered by Wisconsin state lawmakers.
The bill, sometimes known as the "CROWN Act," would ensure racial discrimination protections in state law for things like employment, housing and education would be expanded to include "traits historically associated with race," including hair texture and hairstyles like braids, locs and twists.
State Rep. LaKeshia Myers, D-Milwaukee, one of the bill's sponsors, said some workplace policies for personal grooming and appearance "inadvertently discriminate" against Black people.
"In workplaces throughout the nation, including in our state, grooming standards and policies that were thought to be race neutral often inadvertently discriminate against people of
color," Myers said during committee testimony Tuesday. "What this bill does is promote equity and provide equal footing and level the playing field for people of color in the workplace."
Another sponsor of the measure, state Sen. Lena Taylor, D-Milwaukee, said she has worried about the effect of her hairstyles on her professional life.
"I did question whether my hair would stop me from getting a good grade, an internship, employment offers, a promotion, or even what view someone might have of me when I knocked on the door to ask them to vote for me," Taylor said.
A 2020 study from Duke University found Black women with natural hairstyles, including Afros or braids, are often perceived as less professional than Black women with straightened hair, especially in certain industries.
Several states, including California, New York, Colorado, Maryland and Virginia, have already approved similar measures. No groups have registered opposition to the proposal in Wisconsin. However, during debate, Rep. Chuck Wichgers, R-Muskego, said some have raised concerns about lawsuits claiming hair discrimination when it didn't happen.
"The stakeholders around the country and even in this state are saying we're going to be settling cases out of court to avoid looking like we're being racist," Wichgers said. "This bill isn't getting the momentum it could get throughout the country. It's still an uphill battle in the state of Wisconsin."
Supporters argue other states with the law already in place haven’t seen an influx of lawsuits.
Current state law bars race-based discrimination in housing, education, service as a juror, adoption, and "the equal enjoyment of a public place of accommodation or amusement," as
well as in insurance and banking services. The University of Wisconsin System Board of Regents is also prohibited from investing in companies that practice racial discrimination.
The bill has yet to be voted on in an Assembly or Senate committee. https://www.wpr.org/bill-would-ban-discrimination-against-black-hairstyles-wisconsin
EEOC Examines Connections Between COVID-19 and Civil Rights
WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) explored the impact of the COVID-19 pandemic on civil rights in the workplace at its first all-
virtual Commission hearing today.
“Today’s testimony makes clear that, while the pandemic continues to have serious impacts
on public health and our economy, it has also created a civil rights crisis for many of
America’s workers,” said EEOC Chair Charlotte A. Burrows. “All of us have a critical role to play in our economic recovery. We must come together to ensure that all employees can work free of discrimination and that everyone who wants to work has equal employment opportunities.”
The Commission heard testimony from a wide range of experts on an array of related issues.
Heidi Shierholz of the Economic Policy Institute presented a big-picture view of how job losses due to COVID-19 have had a disproportionate impact on women and people of color in front-line retail and service jobs. Shierholz also highlighted data demonstrating that the pandemic had disparate health impacts related to a person’s race, gender, disability and age. She also discussed how the “K-shaped recovery” is worse for more vulnerable populations.
“Recessions always hit low- and middle-wage workers the hardest, but the unequal impact of the COVID-19 pandemic has been unprecedented,” Shierholz added.
John C. Yang of Asian Americans Advancing Justice discussed the harmful effects of the pandemic on Asian Americans.
“Compounding the devastating health and financial impacts on the Asian American community is the onslaught of anti-Asian hate, directing racist harassment and violence toward Asian Americans who are wrongly blamed for the COVID-19 pandemic,” said Yang. “With the dual pandemics of COVID-19 and anti-Asian hate and violence sweeping through Asian American communities nationwide, Asian American workers face significant
challenges, including threats to both their lives and their livelihoods.”
Fatima Goss Graves of the National Women’s Law Center pointed out that women make up nearly two in three front-line essential workers, putting their lives on the line and struggling to make ends meet, yet make less than men. She provided testimony that women have borne the brunt of pandemic-related layoffs and job losses, and the pandemic has led to a sharp decline in women’s participation in the workforce, erasing decades of progress in the labor force participation rate.
“The COVID-19 pandemic has threatened to exacerbate the wage gap and created opportunities for increased sexual harassment and related retaliation,” Graves said. “The Commission is well-placed to take much-needed action in this moment to support our nation’s workforce.”
“It is beyond question that the pandemic has presented some of the most critical, intensive, and urgent workplace issues HR professionals have ever experienced,” said Johnny C. Taylor, Jr. of the Society for Human Resource Management (SHRM).
He added that HR professionals have had and will continue to have a critical leadership role in their organizations, especially as employers continue to navigate the workplace challenges presented by the pandemic. Taylor also pointed out that the pandemic has increased the burden on working caregivers, noting that nearly 20% of working Americans with caregiving responsibilities believe their professional development has been stifled during the pandemic because of their caregiving responsibilities.
Mónica Ramirez of Justice for Migrant Women highlighted the particularly severe effects of the pandemic on migrant and farmworker women.
“Migrant women workers, including farmworker women … were called upon to continue to do their work — business as usual — to keep the world running. Some of the least visible workers were deemed front-line and essential during this crisis. Front-line is an accurate moniker, given that they literally put their lives on the line for the benefit of all of us,” Ramirez said.
Further, Ramirez pointed out, many immigrant workers do not qualify for COVID-19 relief due to immigration status. “Some of these workers were guest workers subject to the whim of their employers to make changes to keep them safe in their housing, transportation and workplaces.”
Damon Hewitt of the Lawyers’ Committee for Civil Rights Under Law , testified about the disproportionate impact of COVID-19 on workers of color. Hewitt emphasized that the economic and employment issues exacerbated by the health crisis will outlast the pandemic and that it is imperative that the EEOC use its enforcement power to ensure that, as the economy slowly restarts, employment opportunities are available on an equitable basis.
“For over a year, workers of color have faced a horrendous choice: their lives or their livelihood,” Hewitt said. “Systemic economic and health inequities, entrenched over
decades, have created the conditions that allowed the COVID-19 crisis to decimate Black and
brown communities with near impunity.”
Eric Henson of The Harvard Project on American Indian Economic Development pointed out that many Native Americans faced particular COVID-19 enhanced harm, such as the shutdown of casinos, upon which many tribes depend for a large part of their income.
“We live in the richest society that has ever existed on this earth, but when the pandemic arrived in our tribal communities it was plain for all to see that our collective neglect of Indian communities led to direct and devastating consequences for individuals, for families, and for whole communities,” Henson said.
Former U.S. Commissioner on Disabilities Julie Hocker reminded the Commission, “Many individuals with disabilities — particularly those with intellectual and developmental disabilities — are both more likely to work in essential workplaces and are also at a higher risk of severe illness from COVID-19 due to underlying health conditions co-occurring with their disabilities.”
Hocker noted that, in the 30 years since passage of the ADA, the labor force participation rate for adults with disabilities has not increased and that the pandemic wiped out modest improvements in the unemployment rate for Americans with disabilities in recent years. She further noted that workers with disabilities are often the last to be hired and the first to be let go during economic downturns.
Brian East of Disability Rights Texas also spoke on the pandemic’s disproportionate impact on people with disabilities. He noted that even before the pandemic, the employment rate of people with disabilities was persistently less than half of their non-disabled peers and that their unemployment rate is more than twice as high. Additionally, he testified that at the onset of the pandemic, the job losses for workers with disabilities were steeper than those experienced by workers without disabilities and disability discrimination is part of the reason for that disparity.
I’m struggling to find a job. Are my weight and age factors?
I’m over 50, male and very overweight. Looking for a new job seems so much more challenging than 30 years ago! Do you think being overweight or obese, or being older, is a big negative for employers?
Research tells us that being over 50 and overweight will definitely make finding a job that much harder.
One study on discrimination in the workplace found that the more overweight a person is, the more likely it is that they will be discriminated against. Overweight workers are 12 times more likely to experience employment discrimination, obese workers 37 times and severely obese workers are 100 times more likely than other workers to experience workplace discrimination.
And research tells us it takes almost twice as long (67 weeks on average) for someone who is over 55 to get a job than if they were younger.
Handling Workplace ADA Requests For Service Animals
Over the past year, as many employees have worked remotely, they have done so in the accompaniment of their at-home co-workers — their pets, and for some, their service or emotional therapy animals. Amid the events of the social and health crisis of our times, the bonds and dependency of pets, comfort animals and service animals have no doubt been strengthened during the quarantine and remote work periods.
As a result, employers should expect that as they roll out plans to transition their workers back to their physical worksites, they may see an increase in animal-related accommodation requests. Consequently, employers should prepare now to ensure that they understand the extent of their obligations to consider these requests and to ensure that their policies and procedures are poised to properly evaluate these requests, and avoid an onset of disability- related discrimination claims.
ADA: Legal Framework
While prior to the pandemic there was a reported increase in employers adopting pet-friendly policies, which allowed for certain animals in the workplace, there is no direct federal law that dictates generally that employers must adopt such policies. Considerations for allowing animals to accompany employees in the workplace must however be undertaken if requested by an
employee as an accommodation based on an employee's disability.
Under Title I of the Americans with Disabilities Act as amended by the ADA Amendments Act, employers are prohibited from discriminating against a qualified individual because of a disability and must provide a reasonable accommodation to an individual with a disability where necessary to perform the essential functions of their job. Employers are not however required to provide accommodations that present an undue hardship to the employer.
Like any other request for an accommodation based on disability, to establish coverage under the ADA for an employee requesting to bring a service animal to work, an employee must be able to prove that they have a disability or have been regarded by their employer as having a disability, and that they are qualified to perform the essential functions of their job with or without reasonable accommodation. Once an employee has established these facts it is up to the employee to propose a reasonable accommodation to their employer.
Once an employee makes an accommodation request, the employer must then engage in an interactive process with the employee to evaluate the reasonableness of the accommodation request to allow the employee to perform the essential functions of their job. Both the employee and the employer must participate in the interactive process in good faith to identify the precise limitations resulting from the disability and to review whether the requested accommodation could reasonably be implemented to overcome the limitation.
If through the interactive process the employer determines that the accommodation request would cause undue hardship on the employer, the employer can deny the specific accommodation request presented and suggest an alternative accommodation if another reasonable accommodation is available. What constitutes an undue hardship is not a bright-line test, however, facts such as costs, resources, business size and type of business operation are among the facts that may be weighed as factors.
Responding to Animal-Related Accommodation Requests
In evaluating an accommodation request to have an animal accompany an employee into the workplace based on disability, employers should understand that they are not required to consider an accommodation to allow for all types of animals in the workplace. An employer need only consider requests to bring a service animal or emotional support or therapy animal that enables an employee with a disability to perform the essential functions of their job.
Absent a companywide policy inviting such, an employer is not required to consider requests to bring animals to work that serve solely as pets. The tricky part in drawing the distinction, however, is that in the context of Title I, which governs employment, there is no set definition of what constitutes a service animal or an emotional support or therapy animal.
Employers can however borrow from the definition set forth in the context of public accommodation requests under Titles II and III. Under the Title II and III regulations, service
animals are defined as "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including physical, sensory, psychiatric, intellectual or other mental disability." In addition to dogs, miniature horses meeting certain criteria, including size and weight limitations, have also been determined to be service animals.
Borrowing from the interpretations in the circumstances of public accommodations, to differentiate between a pet and a service animal, employers should consider what specific work or functions are to be performed by the animal related to the requesting employee's disability.
For example, a dog providing service to a diabetic employee may be trained to respond to signs that its owner is experiencing low blood sugar levels or to alert its owner of changes in blood chemistry in order for the owner to take swift action for help. Comfort or therapy animals may differ from service animals if they mainly provide comfort and companionship.
In certain instances, however, comfort or therapy animals may also perform work functions more akin to a service animal, although the employee describes the animal as a comfort or therapy animal. Pets on the other hand are domestic or tamed animals kept purely for companionship.
While the types of animals can be distinguished, employers should keep in mind that in the context of providing a workplace accommodation, the line of distinction for when an animal should be treated as a service animal may not be easily identifiable.
For instance, an employee suffering trauma that triggers post-traumatic stress disorder may request an accommodation to bring their emotional support animal into the workplace in order to facilitate their performing the essential functions of their job when returning to the worksite and without relapse. In this instance, the employer would need to engage in the interactive process with the employee to determine the reasonableness of the accommodation request.
The employer may need to consider the request if the arrangement would not present an undue hardship to the company and the employee could provide support to demonstrate how the animal will aid them with their disability to perform the essential functions of their job. The company could consider alternative accommodation arrangements, such as continued remote work which would allow the employee to be with their dog, or an alternate work schedule, as appropriate.
An employer would not however be required to consider an accommodation request that is unlikely to enable an employee to perform the essential functions of their job. Further, employers are not required to consider requests for accommodations where the employee does not otherwise have the background to meet the requisite skills, experience, education and other job-related requirements necessary for the position.
Proof of Work as a Service Animal
While it may seem intuitive to an employer to ask for certification that the animal an employee seeks to bring to work is a service animal, employers should exercise caution in requiring certification of the animal as a service animal prior to considering an accommodation request.
Under federal law and in most states, employees are not bound to produce a certification that the animal has been trained through a particular program to be deemed a service animal.
Currently there is no universal program to certify an animal as a service animal. An employee may however be required by their employer to provide other documentation about the animal's training and health history, including vaccination history to assist the employer in ensuring the safety of having the animal on its work premises and to evaluate its function to the employee.
Where Do Employers Go From Here?
To prepare for the return to worksites in light of the COVID-19 pandemic, employers should take steps now to ensure that their policies and procedures will support the efficient and proper considerations for review of service animal-related disability accommodation requests. In doing so, employers should consider providing refresher training to their human resources team members and others who review accommodation requests for their business.
Employers should also ensure that only job-related medical information is solicited for review of disability accommodation requests and that this information is maintained as confidential in the employee's medical file. Employers should also prepare to take inventory of their job descriptions to ensure that they are updated to reflect current requirements of the job, including essential job duties that require on-site work.
Best Practices for Ending Pandemic-Related Work-from-Home Arrangements
5 Steps to Get Back to Normal
Give employees advance notice about termination of teleworking arrangements. Being summoned back to the workplace can have a tremendous impact on your employees, who have likely adapted their own altered schedules and routines during the pandemic. Provide as much advance notice as possible so they’ll know when they are expected to return.
Notify them about reinstatement of any essential functions that may have lapsed. This is key. If you have, let’s say, relaxed things a bit during the pandemic, whether intentionally or not, you should address the matter directly and reset expectations. If possible, identify the specific duties that were altered or not required during the past year and provide notice they will be reinstated effective with the recall to the workplace.
Educate employees about COVID-19 protective measures in your workplace. If your employees have been working from home, the concept of wearing a mask around the office isn’t something they are accustomed to (yet). To the extent you have policies for mask wearing, social distancing, vaccinations, or other protective measures, be sure to provide notice and information before your workforce returns. Consider providing remote training about the policies.
Tell people with concerns over returning to contact HR immediately. The earlier you can have the conversations, the better. If possible, designate a particular contact person to handle the talks so you can ensure consistent messaging and responses.
Be prepared to distinguish between two general categories of concern: (1) general fear of COVID-19 and (2) worries implicating underlying physical or mental impairments, which the virus-related circumstances may exacerbate and place the employee at risk. The former
typically isn’t grounds to refuse to return to the worksite. The latter may require interactive
discussions and considerations of potential accommodations under the ADA.
If necessary, engage in interactive process required by ADA. To the extent an employee’s worries about returning to the workplace implicate mental or physical impairments, you should engage in the ADA interactive process. Again, it’s best to have the conversations early. They can occur by phone before the return-to-work date. The purpose is to obtain information about an employee’s impairment, including its duration and impact on the performance of essential functions.
To the extent the job duties have been relaxed or paused during the pandemic, the interactive process is a good chance to discuss your expectations about the return to the worksite, particularly regarding any reinstated duties that can’t be performed (effectively) from home. Employees must actively participate in the discussion, and potential accommodations should be addressed. Be sure to document the talks.
Teleworking as Reasonable Accommodation
Those of us tasked with administering the Families First Coronavirus Response Act (FFCRA) are familiar with the Equal Employment Opportunity Commission’s (EEOC) guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.” The guidelines, which appear in a question-and-answer format, have been updated periodically during the pandemic.
In the guidance, the EEOC states when you recall employees to the worksite after a period of teleworking caused by the COVID-19 crisis, you aren’t automatically required to let them continue to work from home as an accommodation for a disability under the ADA:
To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function.
The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the
employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.
The EEOC’s guidance illustrates the importance of notifying employees about any duties you’re reinstating after a recall to the worksite. The guidelines suggest those of you who decline to continue the teleworking arrangements must be prepared to show (1) there were changes to the essential job functions attributable to the pandemic, and (2) you specifically reinstated the functions when employees were able to return to the worksite.
Return to Work: Employer-Mandated COVID Vaccination Policies and Accommodating Employee Disabilities and Religious Beliefs
With over 50% of the adult population in the United States having received at least one dose of a vaccine to combat the novel coronavirus (COVID), many businesses and employers are looking forward to a “return to normal” and their employees coming back to the workplace. One common consideration is whether an employer should implement mandatory COVID vaccination requirements as part of their return-to-work policies. Employers must be mindful of ensuring that their return-to-work policies, including any vaccination mandates, comply
with any federal or state regulations governing vaccinations and / or discrimination in the workplace.
The decision of whether to implement a mandatory COVID vaccination policy is multi- faceted, and employers must be conscious of, and take into consideration, existing laws that govern employees and the workplace. In March 2020, the Equal Employment Opportunity Commission (EEOC) determined that COVID posed a “direct threat” to the health and safety of the nation’s employees, paving the way for its December 2020 guidance advising employers that they may adopt mandatory COVID vaccination policies. However, the EEOC warned employers that they must permit exemptions to their vaccination requirements as an accommodation for their employees with disabilities, under the Americans with Disabilities Act (ADA), or sincerely held religious beliefs, under Title VII of the Civil Rights Act of 1964 (Title VII), unless doing so would cause an undue burden on business operations.
Exemptions Based on a Qualifying Disability Under the ADA
Under the ADA, if an employee requests an exemption to receiving a COVID vaccine on the basis of a qualifying disability, the employer is required to determine whether the employee’s request can be reasonably accommodated, absent an undue hardship (i.e.,
significant difficulty or expense). For example, an employee may have a documented history of allergic reactions to some of the ingredients in the vaccines and, after consultation with their medical providers, is not a candidate to receive one of the available COVID vaccines.
Additionally, some employees may present mental health issues related to severe anxiety about receiving a COVID vaccine. When confronted with a request for an exemption from a mandatory COVID vaccination policy, an employer is required to engage in an interactive process with the employee to determine if the employee, with or without an accommodation, could perform the essential functions of the position without posing an undue hardship to the employer. In this context, the employer must determine whether the employee is able to perform the essential job duties of their position without being vaccinated. However, employers must be aware that an employee’s request for an exemption to the vaccine requirement may also be accompanied by an additional request for an accommodation to the work arrangement, most commonly telework. An employer need not necessarily grant an employee their requested accommodation (e.g., telework), but must provide an accommodation that is reasonable under the circumstances.
Exemptions Based on a Sincerely Held Religious Belief Under Title VII
Title VII requires employers to reasonably accommodate an employee’s sincerely held religious beliefs to the extent that the accommodations would not pose an undue hardship on the employer. One of the more prevalent challenges is determining whether religious
beliefs are “sincerely held” and must be accommodated when an employer is presented with a nontheistic or other belief that does not align with common notions of religious beliefs. For example, should an employee claim that receiving a vaccine will violate their belief system concerning self-determinism and what affects their body, such beliefs cannot be instantly
dismissed. Many courts have determined that nontheistic beliefs can be religious. The
EEOC’s recent guidance echoes this line of court decisions, stating that sincerely held
religious beliefs are “moral or ethical beliefs as to what is right and wrong” that are held by the employee with the same sincerity as that of traditional religions. Stated differently, the employee’s beliefs need not be based in tenants of a traditional religion, but must occupy a place in their life parallel to that occupied by God in many religions. Employers must keep in mind that jurisdictions can vary in their interpretation of this question. Once a determination is made regarding the sincerity of the employee’s belief, an employer moves through the same interactive process as described under the ADA above to determine if accommodating the employee’s exemption request would pose an undue hardship on the employer.
Navigating the ADA’s and Title VII’s reasonable accommodation process can be challenging and involves multiple considerations. It is critical that employers assess their policies and practices to ensure that their employees understand how to initiate the accommodation process (whether for an exemption to a mandatory COVID vaccination requirement or otherwise) and that the employer is consistent in their review of and response to accommodation requests. Additionally, should an employer implement a mandatory COVID vaccination policy, it is critical that any health information obtained from employees is handled with care in accordance with the ADA’s requirements. While restoring employee confidence in returning to work is important, employers must balance the potential impacts of non-vaccinated employees to their business with their obligations under the ADA and Title VII to accommodate qualifying disabilities and sincerely held religious beliefs.
How to Be a Better Ally in the Workplace
While the number of women in tech grows larger each year, gender inequality remains a pressing — and persistent — issue: According to a 2020 Pew Research Center report on gender inequality, 64 percent of women surveyed said the country hasn’t gone far enough when it comes to giving women equal rights as men.
And that translates to the workplace, too. In a 2017 study by Pew, more than 40 percent of women surveyed said they experienced discrimination in the workplace.
Statistics such as these are why women need allies in the workplace who can advocate for them and give them the space they need to not only share their voices but amplify them.
What’s one thing people can do to be better allies to women in the workplace?
You might think that the best way to be an ally for women is to treat them the same way as you
treat men. Yet, it’s not that simple.
The most important thing you can do as an ally, regardless of your own gender identity, is to reflect on, acknowledge and challenge your own gender biases. A widely referenced bias example shared by Sheryl Sandburg is that opinionated women are perceived as being bossy, while opinionated men are perceived as leaders. When we recognize and challenge these implicit biases, we become a strong ally for gender equality.
It’s also important to understand that work-life balance frequently looks different for women than men. Women with kids may inherently have responsibilities and commitments they have to weigh on a daily basis. Allowing flexibility in schedules helps accommodate for this.
Pampered Chef provides unlimited vacation and fully covered maternity leave, which have personally helped me not only grow my career but also be present for important events with my children. Having supportive leadership that encourages women to take time off and allows flexibility during working hours — even if that means attending a preschool event — goes a long way in being an ally.
What does this look like in action?
Men can do their part by making sure they aren’t dominating the conversation or unconsciously interrupting women. Sometimes, a round-robin approach to meetings gives everyone a chance to speak or share their opinion.
However, if you notice women getting spoken over or their ideas not being listened to, you can also call attention to it. I’ve noticed that addressing them by name and saying, “It looked like you had something to say,” is all it takes to give them the floor. In addition, repeating ideas shared by women and giving them credit for that idea can make a big impact. Two or more voices are always stronger than one.
It’s also important for women to see other women in leadership roles. I love the phrase, “If you see it, you can be it,” and I’ve worked with a lot of female leaders that I’ve modeled my career after. Tangibly, this means applying for roles outside your comfort zone, negotiating for salary equality and not letting fear get in the way of what’s possible. It might feel uncomfortable at the beginning but once you flex this muscle enough, it becomes second nature.
What’s one thing people can do to be better allies to women in the workplace?
Listen to women. If a good idea is brought to the table but isn’t heard, amplify it and make sure credit goes to the people who deserve it. It can be hard to build confidence without experience but it’s also hard to develop experience if the work environment doesn’t encourage it. People can support women regardless of their own position by listening and actually taking action to address their needs. Problems are too often dismissed as “the workplace culture” or as being “not as bad as others.” Taking small steps is a great place to start.
What does this look like in action?
If you hear or receive a good suggestion, it’s important to ensure that you say who that idea came from. Another way to be an ally is to make sure that women are properly valued and aren’t getting shuffled a ton of glue work to do if they’re in a technical role.
Glue work is what holds teams together. It’s onboarding new engineers, directing projects and keeping track of the other team members so someone can step in and fix a problem when it arises. All this work determines the success of an engineering team and often falls to women, whether that’s a conscious choice or not.
Managing all of these responsibilities requires both leadership skills and a greater awareness of the problem in order to develop these solutions. If a person in a technical role chooses to take on this work, it should be noted that they’re achieving goals above and beyond what they’re being asked to do. Glue work should not be invisible and it definitely shouldn’t go to women “by default.” Be aware of what work you’re taking on and what work is silently being taken on by your coworkers.
How Can Employers Meet Their Diversity, Equity, and Inclusion Goals
In the wake of George Floyd’s death last year, a summer of protests against systemic racism, and a focus on violence against the Asian-American community, employers everywhere are working hard to address the systemic racism reflected in these tragedies by focusing on their diversity, equity, and inclusion (DEI) goals in the workplace. This April, in honor of “Celebrate Diversity Month,” in-house counsel and employment lawyers can help their clients in this important work in several ways:
Focus on Inclusion
Most DEI programs center on recruiting and hiring strategies. While these are necessary steps to bring diversity into the workplace, lawyers can help their clients focus on ways to enhance inclusion in the workplace. Inclusion comes down to good management, and lawyers are often brought in when management actions lead to litigation risks. By encouraging employers to foster inclusive leadership and management principles in their daily operations as a preventive tool, you can help them think more holistically and long- term about their DEI approach. As employment lawyers, we often can pinpoint a moment where management could have paid a little more attention to the way a decision or policy was communicated or implemented in order to prevent even the perception of disparity or inequity in the workplace. That extra time and care can often prevent the hard feelings that make any given employment issue a litigation risk.
Educate Clients on the Differences Between Racial Quotas, DEI Initiatives, and Affirmative Action Programs
As clients seek your counsel in their adoption of DEI initiatives and programs, protect their goals by making sure they don’t unwittingly establish racial quotas—which are illegal. Help them also understand whether they have any obligation to adopt a formal affirmative action program, typically required for federal contractors and subcontractors and in higher education. These programs require a written plan that is specific, data-driven, and temporary in nature—these benefit from experienced counsel who know how to work up these plans in compliance with federal laws. In between, the EEOC encourages private employers to voluntarily undertake DEI initiatives that promote an inclusive workplace, expand the pipeline of talent to hire, and to gain a “competitive advantage in the increasingly global economy.” These initiatives can focus, for example, on recruitment, training on unconscious bias, and the evaluation and elimination of systems that may be causing disparate adverse impacts in the workplace. Lawyers can help clients set appropriate goals that do not run afoul of Title VII’s prohibition of workplace discrimination, and keep employers focused on DEI work that does not inadvertently exclude workers based on their protected traits and identities.
Take Care with Climate Surveys
Climate surveys are a helpful tool for measuring the impact of DEI initiatives. By asking the workforce about whether they feel included and valued at work, employers can learn about the effectiveness of their DEI strategies. Care should be taken by counsel to ensure that these surveys, and the communications surrounding them, do not invite claims of discrimination that may require a thorough workplace investigation and disciplinary action by the employer. Disclaimers can be utilized to remind employees of the proper chain of command through which to report serious issues of discrimination and hostility, which is especially needed because climate surveys are often most effective when employees are assured of their anonymity. Discuss with your client how best to handle notice issues of incidents that an employee may be trying to “report” through these surveys.
Encourage Inclusive Handbooks
Handbooks and written policies and procedures can be a great way for employers to set the tone of the workplace, both because it is often the first document handed to an employee when they begin work, and as a training tool. Legal counsel can encourage employers to review and update policies that foster an inclusive workplace. This can be done, for example, with the use of gender-inclusive terms, leave policies that are family-friendly, non- discriminatory dress code and hair policies, and procedures that encourage an interactive process in search of accommodations that respect a worker’s religious, disability, or lactating needs. Presenting such options can help employers consider practices that can help reduce the risks of litigation for employee discrimination claims in the future.
Use Attorney-Client Privilege to Promote Candor
Many employers who are committed to the principles of equal pay often hire labor economists to help conduct pay equity audits. Legal counsel has an important role to play in these audits, whether or not the Department of Labor or the courts are involved. Assisting your client through this process—which may warrant you directly hiring the expert—may afford the employer with the benefit of attorney-client privilege when done for compliance purposes. The details and availability of this privilege will depend on each state and the facts and circumstances for each employer. If the privilege is available, however, lawyers can promote candor in the prevention of future claims while supporting a healthy workforce. As employers implement pay equity plans, if any are needed, lawyers can further advise on the best way to publicly communicate about steps being taken, consistent with the employer’s DEI goals.
These are just a few ways that lawyers can play an active role in helping employers visibly and authentically achieve their DEI goals.