APRIL DIVERSITY, EQUITY, AND INCLUSION UPDATE
APRIL DIVERSITY, EQUITY, AND INCLUSION UPDATE
April 1st, 2021
Matt Glowacki, Diversity & Inclusion Chair
Jefferson County HRMA
EEOC Issues Resolution Condemning Violence and Discrimination Against Asian Americans and Pacific Islanders
On March 22, 2021, the U.S. Equal Employment Opportunity Commission issued a Resolution condemning violence and discrimination against Asian Americans and Pacific Islanders. This resolution comes approximately one year after a similar statement from the EEOC which cited reports of mistreatment and harassment of Asian Americans in the early weeks of the Covid-19 pandemic. Indeed, even before the pandemic, the EEOC announced in its 2017-2021 Strategic Enforcement Plan that it had identified discrimination against individuals of South Asian descent as a “developing and emerging” issue. These pronouncements strongly indicate the EEOC’s intent to aggressively enforce Title VII of the Civil Rights Act of 1964 (“Title VII”) regarding claims of discrimination against Asian American and Pacific Islanders in the workplace.
Title VII prohibits discrimination and harassment against individuals on the basis of national origin and race, among other characteristics. The EEOC takes the position (and courts have held) that Title VII’s protections extend to Asian Americans, Pacific Islanders, and individuals of Asian descent (AAPI). Title VII also prohibits retaliation against an employee or applicant who complains about such discrimination, files an EEOC charge of discrimination, or participates in an investigation or lawsuit regarding such discrimination. Moreover, employers can be held strictly liable when supervisors engage in harassment or intimidation of employees because of national origin or race.
In its Resolution condemning “recent violence, harassment, and discrimination against Asian Americans and Pacific Islanders in the United States,” the EEOC states that “hatred, xenophobia, and racism violate our nation’s core principles. The Commission stands in solidarity with the victims, their families, and AAPI communities across the nation, and we pledge to work together to address harassment, bias, and discrimination in the workplace.” The Resolution links this general policy statement with the Commission’s authority to enforce the protections set forth in Title VII and to “remedy barriers to equal employment opportunity based on race, color, and national origin, including those that impact Asian American and Pacific Islander communities.”
Given the EEOC’s public statements on this subject, it is reasonable to conclude that the EEOC will give heightened attention to charges alleging discrimination or harassment against Asian Americans and Pacific Islanders. Employers should review their equal employment opportunity and anti-harassment policies to ensure that they reflect zero-tolerance for discrimination based on national origin and race. Supervisors should also be trained to recognize possible forms of AAPI discrimination and harassment. All employees should be trained on internal procedures for reporting incidents of discrimination, and employers should take steps to prohibit retaliation against anyone who makes such reports.
As always, employers should consult with their legal counsel whenever they receive internal complaints of discrimination. Prompt and thorough investigations of such complaints, along with appropriate corrective action to respond to any violation of the employer’s policies, can provide important defenses to a subsequent EEOC charge or lawsuit arising out of those complaints.
AI can identify age discrimination in recruiting
Artificial intelligence has been credited with eliminating biases that undermine diversity, equity and inclusion in talent acquisition. With concern over racial injustice since George Floyd’s death in police custody driving DEI to new heights, it’s easy to miss the scourge of ageism.
The Economic Policy Institute estimates that an inability of nearly three-fourths of workers age 65 and older to telecommute during the pandemic placed them at a higher risk for developing severe illnesses from COVID-19. In addition, the U.S. Bureau of Labor Statistics noted that long-term unemployment for working Americans 55 and older spiked to 26.4% from 14% last September vs. an increase to 18.2% from 11.3% outside that category.
Experts note that so-called conversational AI can help ensure the safety of older talent as employees return to workplaces without ageism creeping into the equation post-pandemic. It bases talent-sourcing decisions solely on skills, attributes and performance indicators, not physical characteristics. As a result, the playing field can be leveled for millions of older workers whose depth of experience and talent is often overlooked by recruiters.
AI offers a fair, fast and simple application process, says Josh Secrest, VP of marketing and client advocacy at Paradox who employed the technology in his previous job as head of global TA at McDonald’s. Moreover, he says it ensures that the application candidates are filling out goes toward jobs for which they will have the highest rate of success.
“We’re seeing some of those algorithms come in through platforms like LinkedIn, but also some really great technologies that are helping job seekers on career sites, as well as even once they’ve hit ‘apply’ to get matched to the right jobs — even if they didn’t apply to the right one,” he adds.
Deep analytics can be used to determine whether certain job descriptions are boxing out older candidates starting at the top of the hiring funnel where bias is often introduced and make necessary adjustments, according to Kolam. “If your listing is searching for candidates who are ‘energetic’ and ‘on a fast-growth career path’ versus ‘seasoned’ or ‘experienced,’ it could inadvertently be biased toward a younger set of applicants,” he says.
Indeed, during an in-person interview, assumptions may creep in about an older person’s ability to understand the latest technologies and handle a fast-pace work environment or manual labor, notes Dawn Baron, senior strategic marketing manager at PeopleFluent. But she says conversational AI assesses the speed, level of detail and grammatically correct nature of candidate responses, without regard to appearance or the sound of their voice, based on skill and achievement.
Gentex employee with asthma frustrated after company says it won't accommodate face shield
ZEELAND, Mich. — A Holland woman is frustrated with her employer, who is not accommodating her medical condition.
She recently got pneumonia and cannot wear a mask for her entire shift. She has the doctor’s note and the voice to prove it.
But Gentex basically told her that a face shield was a no-go.
“If COVID wasn’t happening, my job does not require this face mask. So, if I didn’t have to wear it, I’d be working,” said Bhree Layton, who's had asthma since she was 18.
Her doctor put her on restrictions saying she’s unable to wear a mask due to being short of breath.
If an employee claims that they are medically unable to wear a face covering, what documentation or standard should the business owner/manager apply to verify that?
The plain language of Emergency Rule 7(5) & (6) does not contain an exception to the requirement that employees wear a face covering. However, employers have an additional obligation to adhere to the Americans with Disabilities Act (ADA). If an employee reports to the employer that he/she has a medical condition that makes it so he/she cannot wear a face covering, this would trigger the business’s obligation to engage the reasonable accommodation evaluation process outlined by the ADA. Under the ADA, an employee would be expected to present medical documentation from a medical provider regarding his/her medical condition and a restriction of being unable to wear a face covering. Per the ADA process, if the employee provides a legitimate medical reason for not being able to wear a face mask or covering, reasonable accommodations could include the following:
•Providing the employee an unpaid leave of absence until face masks or coverings are no longer required at work.
•Allowing the employee to work remotely; or
•Providing an alternative face mask or covering that is allowed by the employee’s medical condition.
In order to avoid MIOSHA enforcement action for an employer’s failure to protect workers from exposure to COVID-19, MIOSHA would require that the employer be able to show documentation that the employer has adhered to the ADA requirements by obtaining the medical documentation, including work restriction, from the employee to support the medical inability to wear a face covering. If an alternative type of covering were authorized for use by the employer as a reasonable accommodation under the ADA, MIOSHA would also expect that the employer provide documentation to indicate it has:
A. Authorized the alternative covering for the employee as a reasonable accommodation under the ADA.
B. Evaluated the use of the alternative covering in the context of its impact on employee risk to exposure to COVID-19 under its preparedness and response plan.
C. Performed any otherwise required hazard and PPE assessments related to the employee’s use of the alternative covering.
D. Determined that the wearing of the alternative type of covering does not create a hazardous exposure to the employee which has not already been addressed.
Can a face shield be used as an alternative to a face covering?
If the employee is able to supply the employer with medical documentation demonstrating his/her medical condition and medical restriction from being able to wear a face covering, the employer has granted the employee a reasonable accommodation, and the employer has determined a face shield does not create any new or different hazard for the employee in the work tasks or operations performed, then a face shield may be used in alternative to a face covering for the medically affected employee. For any employee who cannot establish a medical need or has not been granted a reasonable accommodation under the ADA by their employer, a face shield may not be used in alternative to a face covering.
Unpaid Leave Can Be a Reasonable Accommodation
Manufacturers may find it useful in dealing with disabled employees.
When employers face a request for a reasonable accommodation made by a disabled employee under the Americans With Disabilities Act (ADA), it can easily become a thorny legal tussle over what is considered reasonable. One accommodation that can be helpful or lead to litigation in some circumstances is unpaid leave, depending on how it is applied.
“If the employee’s restrictions prevent the employee from performing the necessary job duties, an unpaid leave of absence may be considered a reasonable accommodation,” says attorney Michael J. Moberg of the Jackson Lewis law firm.
But he admits that the idea is not without its drawbacks. Unpaid leave can pose challenges for manufacturers due to staffing requirements needed to meet production goals. An additional concern could involve compliance with a collective bargaining agreement if the manufacturer has a unionized workforce.
“Nevertheless, if other alternative accommodations prove unworkable, unpaid leave should be considered,” he says.
Under the ADA, reasonable accommodations must be provided for a qualified individual with a disability. “Qualified” is defined as someone who—with or without reasonable accommodation—is found to be capable of performing the essential functions of a job.
Historically, reasonable accommodations under the ADA have been found to include such options as:
• Eliminating non-essential job duties.
• Physically modifying the way the job is performed.
• Providing aids to assist the employee with the job.
• Altering a schedule, transferring to a light duty position if light duty is offered.
• Transferring to an open position.
• Providing an unpaid leave of absence.
Keep in mind the fact that the word “reasonable” comes before accommodation. An employer does not need to provide any accommodation requested by an employee if it turns out to be too costly or impractical. In the way the law has been applied over the years, employers are expected to communicate honestly with a worker and try to work out a mutually agreeable reasonable accommodation that allows the employee to perform essential job functions.
If the employer finds the suggested accommodation will create an undue hardship and rejects it, that could be the start of another, potentially expensive controversy if the employee then chooses to persist in pressing his or her case.
“While the standard for what is an undue hardship may vary based on the employer’s size and available resources, undue hardship can be a high standard to meet in some circumstances,” Moberg notes.
“This may be even more so in a manufacturing setting, where an employer may have numerous employees and substantial investment in property, equipment, materials, and so on. In those cases, therefore, it can be difficult for a manufacturer to claim a proposed accommodation is an undue hardship because of cost.”
EEOC Says Yes
The federal ADA guidance on the matter that was published by the Equal Employment Opportunity Commission (EEOC) states that an unpaid leave is a form of reasonable accommodation an employer should consider.
While EEOC guidance does not have the force of law, because this federal agency is responsible for enforcing the ADA, EEOC guidance is often viewed by courts as persuasive. However, Moberg admits that how long an employer must allow an employee to be off work is not addressed in the guidance and should be applied on a case-by-case basis using an individualized assessment.
Another point to remember is that the EEOC and many federal courts have taken the position that an indefinite leave of absence with no reasonable estimate of when the employee can return to work is considered an undue hardship.
But what about when an employee’s medical provider says an employee may need many weeks, or even months, off from work to recover before the employee is released to return to work? “Those are difficult and fact-specific questions that depend on the nature of the employer, the employee’s job, and how long the employee may need to be off,” Moberg says.
Making unpaid leave even more confounding for manufacturers is the fact that the federal appellate courts do not agree on the standard to be applied to unpaid leave, he adds, pointing to a recent decision. The U.S. Seventh Circuit Court of Appeals (with jurisdiction over Illinois, Indiana and Wisconsin) upheld last December its decision that a multi-month non-Family and Medical Leave Act leave of absence is not a reasonable accommodation under the ADA.
The court said this was because an extended leave of absence does not give a disabled employee the means to work. Instead, it excuses the employee from working, which the Seventh Circuit ruled is not an alternative contained in the ADA.
However, other courts of appeal are split on this issue, with some courts tending to agree with the Seventh Circuit, while others appear to require employers to consider offering longer unpaid leave if doing so eventually will allow an employee to resume working.
Whether a manufacturer can offer an unpaid leave and for how long are complex questions that require analyzing specific facts of each situation, especially in cases where a labor agreement is in effect, Moberg stresses.
“Due to the need to staff shifts, it can be challenging for manufacturers to offer unpaid leave as an accommodation,” he explains. “At the same time, given the difficulties some manufacturers face in recruiting and retaining skilled workers in the 21st Century, keeping a skilled but temporarily disabled employee by offering a period of unpaid leave as a reasonable accommodation may be preferable in the long run.”
Given the potential for prolonged litigation reasonable accommodation cases carry with them, it’s no surprise that Moberg recommends employers consider consulting employment counsel to help address these difficult issues.
Can Employers Require COVID-19 Vaccinations?
On March 11, 2021, President Biden announced that all adult Americans will be eligible to get the vaccine no later than May 1. The availability of the vaccine to the wider public over the months to come could have a significant, hopefully positive effect on how individuals and businesses have operated these past months. It also raises an important question: Can employers require their employees to receive a COVID-19 vaccination?
Mandatory Vaccination Polices
As a general rule, employers have the right to set reasonable health and safety policies for the workplace. This may include requiring employees to be vaccinated for the coronavirus. For example, a mandatory vaccination policy can be particularly appropriate for healthcare-related businesses, such as hospitals or nursing homes, or businesses whose employees have extensive face-to-face contact with the public, such as those in retail and hospitality industries. Notably, the Equal Employment Opportunity Commission (EEOC) has recognized the ability of companies during the pandemic to be more proactive regarding medical inquiries and testing in the workplace in its recently updated guidance on “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”. However, when an employer requires its employees to be vaccinated, the Americans with Disabilities Act (ADA) and the religious discrimination protections of Title VII of the Civil Rights Act of 1964 come into play.
The EEOC guidance explains that an employee may be entitled to an exemption from a mandatory vaccination requirement based on a disability that prevents the employee from taking the vaccination and entitles the employee to a reasonable accommodation under the ADA. In addition, an employee may be entitled to a religious accommodation pursuant to Title VII if the employee has a sincerely held religious belief, practice, or observance that prevents the employee from taking the vaccine. In either case, the employer must engage in the interactive accommodation process required by the applicable act. If you have any questions about your specific situation, speaking with a knowledgeable attorney can be beneficial.
Interactive Accommodation Process
Whether the request for an exemption to a mandatory COVID-19 vaccination policy arises from a medical concern or a religious belief, the decision of whether to approve an exemption should be made on an individualized, employee-by-employee basis considering the specific circumstances involved. The interactive accommodation process should be a two-way discussion between the employer and the employee to consider whether the unvaccinated employee poses a direct threat of a “significant risk of substantial harm to the health or safety of the individual or others [in the workplace], which cannot be eliminated or reduced by a reasonable accommodation.” Employers should consider four factors in determining whether such a direct threat exists: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. In the context of COVID-19, this means the risk that the unvaccinated employee could expose others to the virus at the worksite.
If the employee poses a direct threat to health and safety, the employer must try to come to a reasonable accommodation with the employee.
Employers should discuss and consider whether an employee’s refusal to be vaccinated against the COVID-19 virus for medical or religious reasons can be accommodated (absent undue hardship to the employer) while maintaining the health of the workplace through other measures, such as:
- Allowing the employee to work remotely
- Providing a temporary leave of absence if the employee’s position does not lend itself to teleworking
- Requiring the use of personal protective equipment (PPE), social distancing, and enhanced hygiene protocols in the workplace
- Utilizing alternative vaccine formulas
- Reassigning the employee to a job involving less interaction with the public and others
The decision to adopt a mandatory vaccine policy is controversial and complicated and should be approached with caution. Employers that do mandate vaccination should develop measures and a process to allow accommodations due to disability and religion. These requirements should be clearly communicated to employees, and specific individuals should be designated and trained to handle these accommodation requests.
 The EEOC did not directly state in the guidance than an employer may mandate the COVID-19 vaccination under an Emergency Use Authorization (EUA); however, its responses in the Q&A formatted guidance addressed questions posed as if the employer does require vaccination.
Whether an employer can legally mandate a vaccine distributed under an EUA is outside the scope of this article.
Supporting Transgender People in Work
The process of gender change
Transitioning commences with an initial appointment with the person’s general practitioner, followed by referral to a gender identity clinic (GIC). The next step is surgery and recovery before emerging into the preferred gender.
This process takes a minimum of two-and-a-half years, but frequently exceeds four.
Several steps must be negotiated throughout the process of transition including administrative processes then surgical and medical interventions.
Administrative processes include legal processes to change their name by deed poll followed by other administrative changes to personal documents, such as bank accounts and passport.
Health interventions include referral for psychological support. Males who are transitioning to female may require electrolysis, facial surgery speech therapy to change their voice pitch, and may undergo vocal surgery to further facilitate this. Females who are transitioning to male may often require “top surgery” to develop a more masculine profile.
Furthermore, the person must also deal with family issues undertaking a “real life test” of living in the chosen gender and eventually moving to a “normal” life. It is very important to be cognizant that each transition is personal and unique (Anon 2020).
Support in the workplace
Managing the support in the workplace for transgender employees should begin at recruitment and consider flexibility in terms of any requirements for the inclusion of pronouns, titles and genders on application forms.
Asking for previous names should be done sensitively and only if there is a specific need to do so such as recruiting to a security sensitive role. Company policies should be robust and ensure that transgender employees are treated fairly and sensitively.
Employers should make provision for high-quality diversity and inclusion training to staff at all levels. Access to an Employee Assistance Program may prove beneficial for all employees, and transgender employees may particularly appreciate the support that such program provide.
Every transgender person will have a different experience and it is important to address each situation individually and be as flexible as possible in providing support.
One way of providing this support is to have a robust equal opportunities and specific gender identity policies, differentiated from sexuality/sexual orientation. These policies should emphasize a supportive, flexible and tailored approach.
When supporting a person who is transitioning, it is important to discuss with them whether they would like any temporary changes to working arrangements, such as a period away from client-facing roles. These discussions should be led by the employee.
Data should be managed carefully and a plan made with the employee as to how their information will be updated. Non-consensual disclosure should be avoided and only previous identity documents should be retained that are strictly necessary for purposes such as pensions. Any disclosure of the individual’s history should be controlled by them and they should be reassured about how information about them is managed and confidentiality assured.
There may be a need for them to take time away from work, and these absences should be treated like any other authorized absence.
An important element of supporting the worker through the transition process is to assess any barriers and take steps to minimize any feelings of isolation. Some examples could be offering gender-neutral uniforms and flexibility with regards to name badges and staff photos in the early stages of the transition process.
It would be prudent regularly to review policies to ensure they are fit for purpose. Of particular importance are those relating to employee dignity and inclusivity and equal opportunities. Organizational policies should make it clear that any form of bullying will not be tolerated (HR 24, 2020; Gilroy-Scott, 2018) A positive approach to transgender employees can be shown by ensuring that everyone is respectful and inclusive.
Education of both co-workers and the management team is important. Transgender employees need to know they will be treated with respect and that company policies will be upheld.
Reference to gender reassignment support should be incorporated within any company equality and diversity policies (TUC, 2016; Morton, 2015; Royal College of Nursing, 2020).
Understanding a ‘Memorandum of understanding’
When an employee is going through the process of transitioning, the organization should be cognizant that, prior to visible transition, there are non-visible elements which take place over a period of a few months. It may be of benefit to draw up a memorandum of understanding (MU) that provides an outline of the transitioning process relating to the individual and the company.
This should be a collaborative initiative drafted by the manager and the individual together, highlighting key milestones in the transition process and include a proposed time frame for actions to be undertaken, providing a guide to help management and the individual cover all the required steps (NHS England, 2019; NHS 2020).
Elements incorporated within the MU are of particular importance once the visible stage of the transition has been reached. It should determine what will be communicated, by whom and when and how this will occur.
There will be absences in order to attend medical, surgical and other appointments including attendance at medical and GIC clinic appointments. The requirement of attendance at such clinics should be established and included within the MU. It is essential that policies and procedures are robust and in place to support transitioning.
Of particular importance are those policies covering bullying and harassment and dignity at work. Triggers for sickness absence may need to be adjusted.
It is important that the manager should listen empathetically then plan, and support the member of staff as they transition. This may include asking “out of the box” questions, brain-storming, and “playing devil’s advocate” in order to find solutions to the challenges which they may face. In some situations, the individual may need a short period away from work prior to them commencing in their new gender.
The MU should incorporate elements which will arise as visible elements of the transitioning process are reached. Communications with other work colleagues as the transition process progresses can be in the form of a “heads up” message with clear organizational support including management, peers, team members and other departments.
A proposed timescale and timeline for visible transition should be established; this will assist as the employee attends work in the preferred gender. It should highlight the timeline for the necessary time off from work prior to transition, indicating the dates when various changes will take effect.
These changes will include the person’s chosen name and pronoun, the date that uniform, and administrative changes will commence. It is important to note the timing when the use of preferred welfare facilities will commence.
There should be some flexibility with regards to this likely timescale in line with changes to personal situations and circumstances and they must be aligned to the individual’s private life and various medical requirements.
It is crucial to be aware that this is their transition and can be a very stressful time. Support from their employer can reduce some of the associated challenges.
Pointers when supporting transgender individuals at work
The process of transitioning will be stressful for the employee and they will face a number of challenging and the OHA must be cognizant of this and remain sensitive to the feelings of the person they are supporting. These guidelines may be of assistance.
Direct discrimination occurs as a result of unnecessarily requiring someone not to be transsexual. Indirect discrimination occurs if transsexual people are particularly disadvantaged by an organizational policy, provision or criteria.
Discrimination can occur by perception or by association. Discrimination by perception is defined as where an assumption is made that someone is transsexual, and they are discriminated against because of it, but they are not transsexual.
Discrimination by association has occurred if a person is discriminated against because although they are not themselves transsexual they mix with, or have an association with, transsexual people.
Harassment has occurred if a person(s) act in ways that violate the dignity of another person. This might occur if there is an environment which is intimidating, hostile, degrading, humiliating or offensive environment for that person as a result of them being transsexual.
It is unlawful to discriminate against someone because they have used the provisions of the legislation or have helped someone else to do so, the legal term for this is victimization. These pointers help treat transgender people with respect although, in fact, can be applied as best practice for how you treat any employee.
- Don’t ask about personal or intimate questions. This is unless this is relevant to your medical role, or if you are invited to ask, but remember to keep the information confidential.
- Don’t assume where someone is on their personal trans-spectrum. This is a fluid process and may change in any direction.
- Don’t assume anyone’s sexual orientation.
- Don’t speculate about anyone’s gender or physical sex.
- Don’t use pronouns without asking their preference.
- Don’t negatively comment on their appearance or how “convincing” they are.
- Don’t allow discrimination in any form. Discrimination is outlined within the Gender Recognition Act 2004 and includes protection for both direct and indirect discrimination. It is important to have an understanding of some terms which relate to discrimination.
- Do include transgender people in work-based activities.
- Do offer support when they need it.
- Do educate any co-workers or others who ridicule or use derogatory terms.
- Be available to listen when required.
- Do remember that transgender people are people with feelings and opinions.
- Do remember that transgender people have families.
- Do remember that transitioning is a dynamic process.
- Do remember that transgender people, just like anybody else, may have illnesses at times and not all illnesses are related to transitioning; not everything health-wise is related to transgender. (Powers, 2019; McNeil et al, 2012; Mermaids, 2020; HR-24, 2020).
Toilets and changing rooms
This is an area that often arises in many workplaces and can be quite an emotional subject for all concerned. Managers must ensure that transgender employees are able to use facilities appropriate to their expressed gender identity without fear of harassment.
It may be appropriate to set a date when this will happen, such as the social transition date, and ensure it is communicated to ensure colleagues are not surprised.
People should not be made to use unisex disabled toilets, unless they choose to do so. This may be their preference as a temporary measure during the early stages of their transition period (House of Commons Women and Equalities Committee, 2015).
There are both moral and legal reasons for employers to ensure that every member of their workforce is treated with respect, irrespective of their race, religion, gender or sexuality.
In order to discharge their duties, managers or the trans person may ask for OH advice and support in relation to the process of transitioning and it is important that the OH professional remains cognizant of the impact of this process on the individual and how the manager can ensure a supportive workplace and best assist their team member through the process.
The Biden Administration: Expected Changes In Workplace Protections
As expected, the new administration has taken immediate actions that signal its priorities. On January 20, 2021, the White House issued a freeze on all regulatory actions in process under the Trump administration, and has re-directed rulemaking activity by federal agencies and replaced individuals in leadership positions at those agencies, including at the Equal Employment Opportunity Commission (EEOC). In this alert, we explore the potential impact of these actions on employers and steps that can be taken to prepare for anticipated changes.
Changes in EEOC leadership signal Biden priority
Immediately after his Inauguration, Biden designated Democratic Commissioners, Charlotte Burrows and Jocelyn Samuels, as Chair and Vice Chair of the EEOC. While the current membership of the EEOC is composed of three Republican and two Democratic Commissioners, Chairwoman Burrows will be controlling the agency’s agenda. On March 5, 2021, President Biden terminated Sharon Gustafson, the EEOC General Counsel appointed by President Trump, and named Gwendolyn Young Reams, a veteran EEOC lawyer, as the agency’s acting general counsel. Acting General Counsel Reams will be responsible for leading the litigation program and enforcement actions under federal anti-discrimination laws.
1. What conclusions can be drawn from the leadership changes at the EEOC?
President Biden’s immediate changes signal the administration’s intent to prioritize enforcement of federal anti-discrimination laws and to quickly and aggressively pursue litigation and strategic initiatives consistent with the Biden administration priorities.
Employers can expect expanding protections for women, minorities and the LGBTQ community
On January 20, 2021, President Biden issued Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity and Sexual Orientation, signaling his administration’s focus on strengthening protections against discrimination on behalf of the LGBTQ community. Executive Order 13988 applies to executive and independent federal agencies and extends the 2020 U.S. Supreme Court decision in Bostock v. Clayton County, (Bostock) to other federal laws prohibiting discrimination on the basis of sex. Bostock expanded the application of Title VII to prohibit discrimination based on sexual orientation and gender identity.
The Biden administration also supports H.R. 5, the Equality Act, which passed the House of Representatives (House) on February 25, 2021. The Equality Act goes one step further than the Executive Order 13988 by codifying the Bostock decision’s holding that Title VII’s prohibition on employment discrimination “because of sex” inherently includes discrimination “because of sexual orientation or transgender status.” The Equality Act amends Title VII, as well as other civil rights laws, to prohibit discrimination based on sexual orientation and gender identity, expands protections for pregnant individuals, and prohibits discrimination based on sex stereotypes and sex characteristics.
The Act expands the definition of the term “sex” to include: 1) a sex stereotype; 2) pregnancy, childbirth or a related medical condition; 3) sexual orientation or gender identity; and 4) sex characteristics, including intersex traits. It defines the term “gender identity” as referring to “gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.” Sexual orientation is defined as “heterosexuality, homosexuality or bisexuality.” According to the Act’s section entitled “Findings and Purpose,” gender non-binary individuals are protected by the Act’s provisions. Finally, the Act specifically excludes the use of the Religious Freedom Restoration Act as a defense or a basis for challenging a claim of discrimination prohibited under the Civil Rights Act of 1964. Protections against sex discrimination under the Equality Act would extend beyond Title VII to those sections of the Civil Rights Act of 1964 that protect against sex discrimination including, housing, healthcare, education, credit, programs and activities receiving federal funding, and jury service.
Passage of the Equality Act is not assured. It requires 60 votes to overcome an expected Republican filibuster in the Senate. Regardless of its passage, employers should review and revise policies and practices.
The Biden administration also supports passage of the Pregnant Workers Fairness Act (PWFA), re-introduced in the House on February 16, 2021, by a bi-partisan group of representatives. The PWFA requires private employers with 15 or more employees and public sector employers to provide reasonable accommodations for pregnant employees and job applicants with known limitations related to pregnancy, childbirth or related medical conditions.
1. What does Executive Order 13988 indicate with respect to agency enforcement actions related to unlawful employment discrimination?
The Order directs federal agencies to interpret existing laws and regulations, related to employment, housing, education and immigration consistent with Bostock’s holding, absent evidence of contrary intent. The Order indicates the Biden administration intends to pursue enforcement actions against other forms of “overlapping” prohibited discrimination, such as race and disability.
2. What obligations would the Equality Act impose on employers?
The Equality Act requires employers to treat “pregnancy, childbirth or a related medical condition no less favorably than other physical conditions.” Employers would also be required to provide “access to a shared facility, including a restroom, a locker room, [or] dressing room that is in accordance with the individual’s gender identity.” If sex is a bona-fide occupational qualification, then “individuals are recognized as qualified in accordance with their gender identity.” Employers will also need to ensure policies and practices treat individuals equally and without respect to gender stereotypes, mannerisms or appearance.
3. How can employers manage the expanded anti-discrimination laws?
California law already prohibits discrimination and harassment based on gender, gender identity, gender expression and sexual orientation. More and more states are following suit. Even on a national level, we have advised employers to maintain gender-neutral dress codes and to update anti-harassment policies to prohibit such conduct. Employee forms should be revised consistent with the prohibitions on gender stereotyping. It is now more important than ever for employers across the country to ensure their handbooks and policies are up to date. More importantly, employers should ensure human resources and management personnel maintain current awareness of these new requirements and adjust practices accordingly.
4. What new obligations would be imposed under PWFA?
Currently, employers are required under federal law only to provide accommodations with respect to employees’ and job applicants’ disabilities and religious practices. The PWFA would require employers to engage in an interactive process with and provide reasonable accommodations for pregnant employees and job applicants with known limitations related to pregnancy, childbirth or related medical conditions, absent an undue hardship.
The PWFA also prohibits retaliation against workers exercising rights afforded by the PWFA.
5. How should employers adjust policies and practices related to pregnancy and related conditions?
Recent court decisions, combined with the new administration’s policy goals, suggest that “gender” discrimination will be broadly interpreted to include pregnancy and related conditions. Therefore, regardless of whether the PWFA passes, all employers should update accommodations policies and ensure human resources and supervisory personnel are familiar with the types of accommodations potentially required for pregnant workers, such as more frequent breaks, seating and permitting food/drink at a workstation. Additionally, lactation is generally considered a pregnancy-related condition that should be treated as such when considering updates to policies and practices. Of course, these expanding obligations will not change the requirements for California employers or employers in others states that already have similar laws in any meaningful way.
Employers can expect expanded wage equality measures
The Biden administration supports passage of the Paycheck Fairness Act(PFA) H.R. 7, re-introduced in the House and the Senate in January 2021 with bi-partisan support.
The PFA narrows the justification for pay disparities. Presently, employers may defend a pay disparity as lawful under federal law by asserting one of four defenses, including the defense that the disparity is based on “any other basis other than sex.” The PFA eliminates that broad defense and instead, requires employers to establish that pay differentials are based on a bona fidefactor other than sex, such as education, training and experience. Further, the entire pay differential must be attributable to the alleged bona fide factor.
In addition, the PFA prohibits employers from 1) restricting discussions and retaliating against employees who share pay information, and 2) seeking salary history information from prospective employees as a means of establishing a starting salary or as a condition of employment. Passage of a federal ban on salary history inquiries would introduce uniformity and aid in compliance issues faced by multi-state employers already subject to similar requirements in numerous state and local jurisdictions.
Biden also signed Executive Order 13985, on Advancing Racial Equity and Support for Underserved Communities through Federal Government. Executive Order 13985 expresses the need for federal government efforts to address historical systemic racism and requires the establishment of an equitable data working group to gather datasets disaggregated by race, ethnicity, gender, disability, income, veteran status and other key demographic variables. As a result, employers may see efforts to collect data beyond pay data information.
1. What obligations would PFA impose on employers?
Compliance with the PFA will require employers to ensure uniformity in pay practices and implement measures to tie wage rates to factors such as education, training and experience. The PFA also requires the collection of compensation data and other employment-related data disaggregated by sex, race, ethnicity and job categories of employees on an annual basis. As of January 1, 2021, employers with employees in Colorado are subject to that state’s Equal Pay for Equal Work Act, which has already eliminated the catch-all for “any other basis other than sex,” making it perhaps the strictest equal pay law in the country to date.
2. How can employers defend against pay disparity claims?
With increasing attention focused on pay disparities, employers should develop quantitative metrics to track levels of applicant and employee education, training and experience, and ensure pay disparities are based on such metrics. Employers should remember that equal pay laws typically look at total compensation, making things like bonuses and other financial incentives also subject to scrutiny. Employers should also ensure that these data are being tracked and retained for at least four years post-termination.
3. Will efforts to collect EEO-1 Component 2 pay data from employers be renewed?
Probably. Collection of EEO-1 Component 2 pay data, which requires that employers report employees W-2 income information disaggregated by gender, race/ethnicity and job category is expected to be renewed under newly appointed Chair, Charlotte Burrows. EEO-1 Component 2 pay data collection was halted under the Trump administration in 2019.
Employers can expect restrictions on forum selection clauses, class and collective action waivers, and non-compete agreements
The Biden administration has promised to enact legislation banning mandatory arbitration agreements and agreements requiring employees to relinquish their right to participle in class or collective actions.
In February 2021, the Forced Arbitration Injustice Repeal (FAIR) Act was re-introduced in the House and amends the Federal Arbitration Act to:
If passed, employers would be required to permit employees and prospective employees to opt out of any arbitration agreements. The FAIR Act would invalidate current arbitration agreements with regard to disputes or claims that arise or accrue after the date of enactment.
The Biden administration also has articulated its opposition to broad non-compete clauses and no-poaching agreements characterizing them as anti-competitive agreements that lead to wage suppression. Even under the Trump administration, the Department of Justice (DOJ) targeted no-poaching agreements. In December 2020 and January 2021, the Antitrust Division of the DOJ announced indictments in two cases against private companies for entering into no-poaching agreements and conspiring to suppress competition for senior-level employees. The DOJ’s announcement of its intent to prosecute companies who “enter into naked wage fixing and no-poach agreements” came in the context of investigating employers that allegedly took advantage of essential workers who served on the front lines during the COVID-19 pandemic.
Employers can expect this trend to continue, as the Biden administration has promised to work with Congress to enact legislation restricting the use of non-compete agreements except those that “are absolutely necessary to protect a narrowly defined category of trade secrets” and to “outright ban all no-poaching agreements.”
1. What steps can employers take to ensure enforceability of employment agreements?
Employers should carefully monitor developments in the area of non-competes and arbitration agreements and prepare for the possibility that employment agreements will need to be updated to comply with new restrictions.
2. What can employers do to prepare for the possibility that limitations on competition by former employees will be significantly curtailed?
Many states already place significant limitations on the scope of non-compete and non-solicitation agreements. Employers who rely heavily on these types of agreements to protect confidential, competitive information should take steps to ensure that this information does not leave with a former employee in the first place. Employers should focus on what they do to be the supplier of choice to their customers, regardless of who is competing with them.
Covid-19 Pandemic: has it turned back the clock on gender equality?
Not long into the start of the pandemic gender equality commentators warned about the potential disproportionate impact on women. One year on, we now have statistics to back them up. The report published by the Women and Equalities Committee on 9 February and data from the Office for National Statistics published on 10 March have shown that more women than men have been adversely affected by the COVID-19 pandemic.
- Prohibit the use of pre-dispute mandatory arbitration agreements; and
- Prohibit the use of pre-dispute joint action waivers which waive the right of one party to participate in a joint, class or collective action in any forum in the context of employment, consumer, antitrust and civil rights disputes.
Women’s employment was found to be more vulnerable than men’s for a number of reasons, including because women tend to be overrepresented in industries that are most likely to be affected by the pandemic; such as hospitality and retail. They also tended to be on less secure or flexible contracts and earned less than men as well as having taken on the bigger share of childcare and home-schooling responsibilities. A significant proportion of women made redundant during the pandemic mentioned that they thought their pregnancy, maternity leave or motherhood was a factor in the decision to terminate their employment. For example; a survey by Pregnant Then Screwed last year revealed that 53% of pregnant women believe their pregnancy was a factor in their redundancy decision while 61% believed that their maternity leave was a factor.
The pandemic has resulted in a significant rise in redundancies and the rate of female redundancy has increased at a higher rate than that of male redundancy as reported by the Equality and Human Rights Commission last year. The pre-pandemic trend was already not encouraging in that pregnancy and maternity discrimination has, it appears, been on the increase in the last 10 years.
Pregnancy and maternity are protected characteristics under the Equality Act 2010 and it is discriminatory to treat an employee unfavorably because of her pregnancy, pregnancy-related illness or because she has taken or sought to take maternity leave. Selection of an employee for redundancy because she is pregnant or on maternity leave will also be an automatically unfair dismissal.
Currently, women are entitled to (slightly) more favorable treatment if they are to be made redundant whilst on maternity leave, namely that they have to be offered any suitable available vacancies ahead of their colleagues. However, employers have simply been waiting until they return from maternity leave before making them redundant. Accordingly, the Government has committed to extending this protection to six months after the end of the maternity leave as part of the Employment Bill originally announced in December 2019. The Committee recommended that the Bill is published by the end of June 2021 at the latest.
Former chair of the Committee, Maria Miller MP, has called for legislation to make it automatically unfair to dismiss an employee by reason for redundancy if the dismissal occurs during pregnancy, maternity leave, or the six-month period after the end of maternity leave – thus removing the need for causative connection between the pregnancy and the dismissal. Similar protection is already used in Germany.
Childcare has also been found to be a significant factor in redundancy. Employers should be aware to the risk of indirect sex discrimination claims, if they make a female employee redundant or otherwise terminate employment essentially because of childcare issues.
Women are also more likely to submit flexible working requests then men. Presently, the minimum length of service required before an employee may submit a flexible working request to their employer is 26 weeks. The Committee recommended that this becomes a “Day One” right. Current arrangements can trap women into working for the employer with whom they have managed to negotiate a reasonable working arrangement, thus impeding a more gender-equal economic recovery. The Government has also committed to making flexible working the default position as part of the upcoming Employment Bill. When considering flexible working requests, employers should be aware of indirect sex discrimination claims if they refuse such requests, as women tend to take on the bigger share of childcare responsibilities.
Gender pay gap
The pandemic has also likely widened the gender pay gap significantly. Enforcement of gender pay gap reporting requirements on employers with more than 250 employees was suspended for the 2019/2020 financial year. Pre-pandemic statistics have shown that women were already less well paid then men. For that reason, during the pandemic, they were more likely to ask to be furloughed to take on the home-schooling and/or childcare responsibilities. Employers should continue gathering the relevant data for pay gap reporting and could face equal pay claims if they pay less to their female employees who perform equal work to their male counterparts.