OCTOBER DIVERSITY, EQUITY, AND INCLUSION UPDATE

Oct. 2rd, 2021
Assembled By
Matt Glowacki, Diversity Equity & Inclusion Chair
Jefferson County HRMA & WI SHRM
Matt@MattGlowacki.com

 

A Proclamation on National Disability Employment Awareness Month, 2021

JOSEPH R. BIDEN JR. President of the United States
When we passed the Americans with Disabilities Act (ADA) 31 years ago, our Nation moved closer to fulfilling its foundational promise of liberty, justice, dignity, and equality for all.  I was enormously proud to co-sponsor the ADA as a member of the United States Senate — a truly bipartisan effort that was personal to millions of families.  For more than 60 million disabled Americans, the ADA is much more than just a law.  It provides a vital source of opportunity and self-sufficiency, allows for increased economic participation, and serves as a powerful shield against discrimination in the workplace.  National Disability Employment Awareness Month is a chance for us to celebrate workers with disabilities and recommit ourselves to dismantling barriers to access and inclusion in the workplace. 

This year, the Office of Disability Employment Policy in the Department of Labor celebrates 20 years of helping advance opportunity for workers with disabilities across the Nation.  As part of its mission, the agency remains at the forefront of emerging challenges in the workplace, such as developing comprehensive resources to ensure that workers grappling with the long-term effects of COVID-19 have access to the rights and resources they are due under disability law — including flexibilities, tools, and accommodations in the workplace.  

Despite the progress our Nation has made in recent decades, people with disabilities are still too often marginalized and denied access to the American dream.  Americans with disabilities — particularly women and people of color — have faced long-standing gaps in employment, advancement, and income.  The COVID-19 pandemic has compounded these inequities, as people with disabilities have faced heightened risks — particularly the disproportionate share of people with disabilities employed in the hardest-hit industries.  Our Nation will never fully recover and rebuild unless every single community — including disabled Americans — is fully included.

My Administration remains focused on ensuring that every single American has the chance to thrive, succeed, and contribute their talents.  That is why I have issued Executive Orders to advance diversity, equity, inclusion, and accessibility to bolster career paths and promote economic stability for Americans with disabilities.  I have proposed eliminating outdated, discriminatory provisions in the Fair Labor Standards Act that allow employers to pay disabled workers less than the minimum wage.  Young people with disabilities in particular must be part of an inclusive economic recovery so that they can find the fulfilling careers, apprenticeships, and futures they deserve in every industry; to that end, we must promote the technologies and tools, as well as the attitudes, that foster welcoming work environments for young Americans.  Our Nation’s future will be brighter and more secure when everyone is dealt into the economy we build together. 

All Americans should be proud that we have made substantial progress since the days before the ADA — when an employer could refuse to hire you because of a disability, when a person using a wheelchair could not take a bus or a train to work, and when a person with a disability could be denied service in a restaurant or grocery store.  Now, 31 years later, it is the shared responsibility of all of us to tear down the barriers that remain for people with disabilities and to ensure that all Americans have the chance to find good jobs and build good lives — for themselves and for the good of our entire Nation.

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim October 2021 as National Disability Employment Awareness Month.  I urge all Americans to embrace the talents and skills that workers with disabilities bring to the national recovery and to promote the right to equal employment opportunity for all people. 
IN WITNESS WHEREOF, I have hereunto set my hand this thirtieth day of September, in the year of our Lord two thousand twenty-one, and of the Independence of the United States of America the two hundred and forty-sixth.
 

United States: Long COVID: The Long (And Short) Of Compliance With The ADA

As employers continue to navigate through the challenges of the COVID-19 pandemic, government agencies, such as the U.S. Equal Employment Opportunity Commission (EEOC) have been instrumental in issuing guidance that allows employers to create and comply with leave of absence policies that are compliant with the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

With the number of vaccinated employees increasing, the gradual shift will be from employees requesting leave due to a COVID-19 diagnosis to many employees now requesting leave as a result of severe COVID-19 symptoms that last for months—this unique group of individuals are often referred to as "COVID-19 long-haulers." For COVID-19 long-haulers, the EEOC has promised—but has yet to—issue guidance that employers can rely on in addressing these employees' leave requests. In the meantime, what are some of the best practices an employer should follow in considering leave requests for COVID-19 long-haulers that are compliant with the ADA and the FMLA?

On July 26, 2021, President Biden announced his administration's intent to apply ADA protection to individuals suffering from "long haul" COVID. The Biden Administration also published joint guidance from the Departments of Justice and Human Services (the Joint Guidance) that specifically states that "long haul" COVID can be an "actual disability" under the ADA and provides examples involving: (1) lung impairment resulting in a substantial limitation of respiratory function; (2) lingering intestinal pain, vomiting, and nausea; and (3) "brain fog" that substantially limits brain function, concentration and/or thinking. 

Importantly, the Joint Guidance also recognizes that "long haul" COVID is "not always a disability," referring to the fact that to qualify as a disability under the ADA, the physical or mental impairment must "substantially limit one or more major life activities" of the individual, which has typically been interpreted to exclude temporary conditions that an individual will fully recover from. To further complicate matters, however, the Joint Guidance also specifically states that "employment is outside the scope of this guidance document," therefore leaving employers in a state of uncertainty until the EEOC weighs in on whether "long haul" COVID constitutes a disability under the ADA, and how or what steps an employer should take to be ADA compliant.

Given the current state of play, it is best to assume that the EEOC will take the same position as the Joint Guidance on whether long COVID is a disability under the ADA. It is also best to assume based on the Joint Guidance that the most likely requests will be remote work and a flexible schedule, as employers have seen throughout the pandemic. Based on these assumptions, best practices to comply with the ADA would include the following:

• Review existing ADA requests for accommodation policies and procedures to ensure compliance with the Joint Guidance, being mindful that the interactive process is specifically mentioned in the Joint Guidance as necessary because not every case of "long haul" COVID necessarily meets the ADA definition of a "disability."
   
• Develop required medical forms to address "long haul" COVID symptoms and limitations that all employees' doctors can complete as part of interactive process.
   
• Engage in the interactive process to determine a reasonable accommodation. Keep in mind that the EEOC has made it clear that some accommodations that were reasonable at the height of the pandemic may not necessarily be reasonable on an ongoing and more permanent basis.
   
• If inclined to deny remote work as an accommodation with respect to an employee with "long haul" COVID (as an employer would have done to contain the spread of COVID before the vaccine), gather the information necessary to be able to demonstrate the impact of the accommodation on productivity and performance.
   
• Finally, remember the FMLA if your organization and the employee meets the requirements for coverage/eligibility. Consider that an employee who is FMLA-eligible could take up to 12 weeks of unpaid leave in a 12-month period. If a chronic condition, intermittent FMLA leave may be available.

Conclusion

Employers should keep an eye out for new EEOC guidance on "long haul" COVID and the ADA.  In the meantime, however, the best advice is to assume the Joint Guidance will be adopted by the EEOC and follow the best practices included herein. Consult with your Foley employment law attorney on interactive process and reasonable accommodation issues as it relates to employees with long COVID, as case law is expected to also develop in the coming months.
https://www.mondaq.com/unitedstates/employee-benefits-compensation/1116074/long-covid-the-long-and-short-of-compliance-with-the-ada

 

What Employers Need To Know About Workplace Mental Health And Legal Liability

While COVID-19 has brought widespread and growing awareness of workplace mental health, fears of legal liability can often stand in the way of meaningful progress. It can be especially difficult for frontline managers to understand how to navigate the best path forward when an employee discloses a diagnosis of mental illness. In the absence of clear guidance and company policies, many managers may not know where to turn or what to do.

As employers are required to provide reasonable accommodations, what is the best way to proceed when an employee makes a disclosure? Three steps are key: 

Follow The Lead of the Employee Making the Disclosure 
The first thing to do when an employee shares their diagnosis is to listen, as discussed in a recent HBR article. It’s most likely that the employee arrived at the decision to disclose after much time and consideration, so how a manager responds can make all the difference. Simply thanking them for the disclosure can be a critical first step. This is a difficult and deeply personal decision, and managers should give verbal acknowledgment that they know this.
 
Employees can provide information about the existence and extent of their disability or diagnosis, and how this impacts their role, as well as the accommodations needed to address these challenges. How they choose to share this is up to them. What’s more, employees have the right to disclose at any time during their employment—and they also have the right not to disclose. The Americans with Disabilities Act (ADA) states that employers cannot ask questions that will likely reveal the existence of a disability before making a job offer, so letting the employee guide the conversation—and knowing that there will need to be more than one conversation—will go a long way toward making them feel seen and heard. 

Know Your Company’s Policies 
When an employee trusts a manager enough to disclose their condition, it may seem like the right move to take immediate action to provide accommodations. However, in most cases, this is actually not the best move. Instead, managers should partner with the employee to determine and understand what would make them feel supported – tapping into the company’s resources and always following company policies. This will take time, as an ongoing partnership to develop and refine a plan that will best suit the employee’s needs. 

Employers should take care to understand what company policies exist to provide support, such as an Employee Assistance Program and/or Disability Employee Resource Group. What’s more, flexible working arrangements for all employees should be designed to be inclusive, which means normalizing workplace mental health as a company priority, regardless of a disclosed disability or diagnosis. 

Create a Manager Toolkit for What to Do When an Employee Discloses 
Employers who take mental health seriously should work with their organization’s legal team to build a manager toolkit. Legal teams know that managers are themselves employees and should have a clear picture of what resources are available to themselves as well as their direct reports. Where applicable, such a toolkit may also include information about the process of operating outside of the U.S., so that the team knows how to navigate that country’s specific laws. A great place to start is the JAN’s Workplace Accommodation Toolkit, which is a free, comprehensive resource for employers who want to move beyond basic ADA compliance to build more inclusive workplaces
https://www.forbes.com/sites/onemind/2021/09/30/what-employers-need-to-know-about-workplace-mental-health-and-legal-liability/?sh=4fa2f97a796e



 

California workers with disabilities were paid as little as $2 an hour. Why that will change

 

Jackie Armstrong, 35, who is on the autism spectrum, describes on Thursday, April 15, 2021, at her home in Roseville, how she felt earning less than minimum wage due to her disability. Armstrong now works at SMUD and makes over minimum wage. 
Workers with disabilities in California must be paid at least the state’s minimum wage by 2025, under a bill signed by Gov. Gavin Newsom Monday.

Senate Bill 639, by Sen. María Elena Durazo, D-Los Angeles, ends a practice known as 14(c) or sheltered workshops, in which workers with disabilities were paid as little as $2 an hour. The state will join ten other states including Alaska, Oregon and Texas in phasing out the practice.

Supporters of sheltered workshops have said the practice has given jobs to thousands of Californians with disabilities, giving them self-confidence and life skills. Opponents said it led to exploitation of workers and are pushing to end the practice across the nation.
Although the number of those in sheltered workshops has continued to drop, an estimated 10,000 or more California workers were in subminimum wage employment as of 2019, according to a recent report from the Disability Rights California citing the U.S. Department of Labor statistics. 

Under the bill, the state can no longer authorize new employers to pay subminimum wages to their workers with disabilities. Those who have already been paying subminimum wages have until Jan. 1, 2025 to increase the pay for their workers. 
There’s a condition, however. The State Council on Developmental Disabilities must create a plan detailing how the state can help workers with disabilities get the services and support needed to get jobs that pay them at least minimum wage. If the plan isn’t released by Jan. 1, 2025, employers can continue to pay their workers subminimum wages.

A 2019 report submitted to the California Department of Developmental Services had found that $1.8 billion in extra state funding is necessary to meet the needs of providers and those with disabilities, including helping them find jobs. 
Newsom on Monday also signed 17 other bills aimed at protecting workers, including Assembly Bill 1003, which makes intentional wage theft punishable as a felony with a jail sentence of up to three years.
https://www.mercedsunstar.com/news/california/article254509782.html

 

Low Wages And Pandemic Gut Staffing Support For Those With Disabilities

 

Ernestine “Erma” Bryant likes her job, but the pay is a problem.

She works in a caregiver role as a direct support professional in Tifton, Ga., helping people who have intellectual and developmental disabilities with basic functions such as dressing, bathing and eating.

Bryant said it’s fulfilling work. “You can help people be successful — people who are confined to the bed,” she said. “It gives me joy knowing that I can help that person get out of the house.”

But she said she’s being paid less than $10 an hour and is trying to get a second job.

In a way, Bryant is an anomaly, having worked as a support professional in the same job for five years in a field with high turnover. Even before the pandemic, the nation had a shortage of direct support professionals working in private homes, group facilities, day programs and other community settings.

Fears of contracting COVID-19 at work have made the caregiver staffing problem worse. Persistent low pay amid a tight U.S. labor market makes it that much harder to attract workers.

Worker shortages across the health care spectrum — from nurses to lower-level staffers — are an unprecedented challenge for hospitals and other medical organizations. The shortage is at an “epic level,” said Elizabeth Priaulx, a legal specialist with the National Disability Rights Network.

People with disabilities who have been approved by state Medicaid programs to receive 40 hours a week in caregiver services now often get just 20 hours, Priaulx added. If family members can’t help offset the gap, a person may be forced into a nursing home, she said.

Diane Wilush, CEO of Atlanta-based United Cerebral Palsy of Georgia, said her organization has more than 100 vacancies among 358 jobs in 24/7 residential programs. Many day programs, including those run by her group, have been unable to offer full services because of staffing gaps.

“We can’t compete with every retail shop paying $15 to $18 an hour,” Wilush said.

That’s because several years ago the state of Georgia chose a base Medicaid reimbursement rate for residential services providers of $10.63 per hour, though they can pay caregivers more — and sometimes pay less. “It was an inadequate rate even then,” Wilush said.

The strain from an increased workload has a negative effect on caregivers, said Bryant, the caregiver in Tifton. “When you don’t have enough help, it makes you want to find another job,” she said.

In 2019, before COVID-19 erupted, the direct support professional turnover rate was 43% nationally, according to the National Core Indicators collaboration of public developmental disability agencies. In a February 2020 survey of providers by the American Network of Community Options and Resources, two-thirds of service providers said they were turning away new referrals. Since staffing shortages became a problem, 40% have seen a higher incidence of events that could harm a person’s health or safety.
And a KFF survey released last month found that during the pandemic, two-thirds of responding states reported a permanent closure of at least one provider of Medicaid-covered home and community-based services.

Workers have at times been forced to work 16-hour shifts during the pandemic, said Whitney Fuchs, CEO of InCommunity, an Atlanta-based provider of community services and support to people with developmental disabilities. “This crisis is going to erupt into unsafe, unhealthy situations.”

https://www.disabilityscoop.com/2021/09/28/low-wages-and-pandemic-gut-staffing-support-for-those-with-disabilities/29505/
 

EEOC Files Disability Lawsuits in El Paso and Ft. Worth Based on COVID Related Discrimination

DALLAS – The EEOC filed two lawsuits in Texas courts today, alleging that a pharmacy in Fabens and a coffeehouse in Ft. Worth both discriminated against employees with disabilities that rendered them vulnerable to serious illness if they contracted COVID-19. The two employers took different approaches to the virus, but both ran afoul of the ADA.

According to the EEOC’s suit against U.S. Drug Mart d/b/a Fabens Pharmacy, the pharmacy discriminated against a pharmacy technician with asthma who asked to wear a facemask at work as an accommodation of his disability immediately following the COVID-19 outbreak to help protect him from the virus. The employee was harassed because he requested this accommodation and was sent home twice when he asked to wear a mask, and then taunted and humiliated for questioning management’s policy prohibiting masks, leading him to quit, according to the suit.

The EEOC filed its suit, Civil Action No. 3:21-cv-00232, in U.S. District Court for the Western District of Texas, El Paso Division, after first attempting to reach a pre-litigation settlement through its conciliation process. In this case, the EEOC seeks back pay, compensatory and punitive damages and injunctive relief.

EEOC filed suit in Ft. Worth against 151 Coffee, LLC alleging that the company violated the ADA by denying reasonable accommodation to two baristas with disabilities and terminating their employment. According to the EEOC’s complaint, the employees were not allowed to return to work until a vaccine for COVID-19 was developed, even though they were ready and willing to work.

The EEOC filed suit, Civil Action No. 4:21-cv-01081, in U.S. District Court for the Northern District of Texas, Ft. Worth Division, after first attempting to reach a pre-litigation settlement through its conciliation process. In this case, the EEOC seeks back pay, compensatory and punitive damages and injunctive relief.

“The employers in this case took actions in response to the COVID-19 pandemic that had the effect of discriminating against disabled employees in violation of the ADA,” said Meaghan Kuelbs, senior trial attorney for the EEOC. “Employees cannot be refused the opportunity to work just because their employer believes it is protecting them from illness. Absent a direct threat to the safety of themselves or others, employers cannot deny employment opportunities based on disability.”

Added Sr. Trial Attorney Joel Clark: “Employees with disabilities should not be subjected to harassment, threats and intimidation just because they asked for a reasonable accommodation. That violates the ADA.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.

https://www.jdsupra.com/legalnews/eeoc-files-disability-lawsuits-in-el-7096666/


CANNABIS WEEK
Age Discrimination impacts Job Prospects for People Over 50

A total of 2.99 million recent job seekers over 50 (52%) believe their age has made employers less likely to hire them, according to a new report from Legal & General Retail Retirement and the Centre for Economics and Business Research.

The ‘Working Late: Over 50s and employment’¹ report found that 46% of job seekers aged 50 – 59, and 64% of job seekers aged 60 – 69 felt their age put them at a significant disadvantage when looking for jobs. These findings come during the ninth annual National Inclusion Week, designed to celebrate everyday inclusion in all its forms.

Experiences and challenges job seeking
In addition to finding age to be a barrier in their job search, other common experiences facing over 50s included feeling overqualified for the jobs they identified (37%), believing their skills did not meet the standards required in today’s workplace (35%) and encountering unsuitable hours and a lack of flexibility in working hours or location (33%). Over 50s seeking employment also found poor health (17%) and caring responsibilities (9%) adversely affected their job search, especially when these were not accommodated for by potential employers.

Finally, over 50s were asked to describe circumstances in which they believe their age made employers less likely to hire them. Most frequently, over 50s noted a lack of invites to interview (22% of those who think their age made employers less likely to hire them) and, for those who were interviewed, receiving rejections (16%). Actual or perceived closeness to retirement was also stated as a reason that employers were less likely to hire them (11%), as well as actual or perceived generational skills gap (8%). Less frequently, respondents noted that some job offers have implicit or explicit age restrictions biased toward younger workers, and that they have found the ‘cultural fit’ emphasised by businesses to be exclusionary. A final common theme identified in the responses was the perception that businesses can hire younger workers more cheaply.

Motivations for finding work over 50
In terms of driving factors for why over 50s were searching for a job, 29% stated it was wholly financial, whereas 26% stated that their search was driven entirely by other aspects, including life satisfaction as well as social and mental health benefits. The majority of respondents stated their motivations were equally financial and non-financial, an issue that did not differ within age subgroups.

http://hrnews.co.uk/shut-out-and-overlooked-age-discrimination-impacts-job-prospects-of-3-million-over-50s/



 

Older workers are a necessary part of the workforce: Here’s what companies can do for them

Q. Sometime ago, you wrote about the advantages of working in later life. That was very helpful in my discussion with my husband and his decision of whether to retire or to continue working. Now, can you write about why employers should hire older workers? We older folks may decide to work but then, who will hire us at 60, 70 and 75 years? L.B.

Your question is timely and relevant. The importance of older workers is highlighted during the National Employ Older Workers Week held the last full week in September. The goal is to increase awareness of the older employee segment of the workforce and to develop strategies that tap the potential of experienced workers.

Global research analyst Josh Bersin and Tomas Chamorro-Premuzic, chief innovation officer at ManpowerGroup, wrote a 2019 article published in the Harvard Business Review entitled “The Case for Hiring Older Workers.” According to the piece, roughly ten thousand companies had been asked, “Is age a competitive advantage or disadvantage in your organization?” Unsurprisingly, more than two-thirds of the companies considered age a competitive disadvantage. Age discrimination is pervasive as indicated by an AARP report that found two-thirds of those aged 45 to 74 observed or experienced age-related discrimination. And most age discrimination in the workplace is not reported.

Despite age being perceived as a competitive disadvantage, more older people are expected to be employed. According to a document by the U.S. Senate Special Committee on Aging, the overall labor force is expected to increase by an average of just 0.6 percent a year through 2026. The number of workers ages 65 to 74 is projected to increase by 4.2 percent annually and the number of workers ages 75 and older is expected to increase by 67 percent annually. These are pre-pandemic numbers, yet are worth noting.

We are reminded of Mark Zuckerberg’s 2007 public statement that young people are just smarter. That’s not the case. Yes, there is some cognitive decline after age 30, but two predictors of performance – knowledge and expertise — continue to increase after age 80.
And there is no age limit to learning new things. Drive and curiosity are ageless and catalysts for acquiring new skills, even in later life.

Age and workplace wisdom are connected. Take entrepreneurship, for example. Older and more tenured people are more successful entrepreneurs. “Those over the age of 40 are three times more likely to create successful companies as a result of their patient, collaborative natures, and their lack of having a ‘need to prove myself’ attitude,” according to the Harvard authors. They add that companies that want to see our economy flourish need to take action and give older persons more opportunities. 

Suggestions on what companies can do to engage older workers: 

• Offer flexible work options.
• Review pay equity according to job level, not tenure. 
• Include age diversity into diversity, equity and inclusion programs. 
• Give older workers roles as managers, supervisors or mentors, as deserved.
• Recruit older persons. 
• Teach recruiters not to discriminate because of age. 
• Build a multigenerational workforce. 
• Create more pathways for training

In a 2018 study, AARP found that just “adding flexible and part-time options would have encouraged 75 percent of people age 50 and older to stay in the workforce longer. And more training opportunities would have helped 55 percent of the same group to continue working.” 

Ageism in the workplace deprives companies of talent and productivity, deprives older adults of income and sense of purpose and connection, and finally, hurts economic growth. In the same AARP study, researchers calculated what older workers might have contributed to the economy if they had not been subject to age discrimination. Their contribution was estimated as $850 billion in gross domestic product. 

We are reminded that Winston Churchill won the Nobel Prize for literature at age 79 and Grandma Moses started painting at age 76. Warren Buffet at age 91 is considered one of the most brilliant minds in the field of finance. 

https://www.pe.com/2021/09/26/older-workers-are-a-necessary-part-of-the-workforce-heres-what-companies-can-do-for-them/


Menopause in the Workplace

A 2019 survey conducted by BUPA and the Chartered Institute for Personnel and Development found that three in five menopausal women in the UK were negatively affected by symptoms at work and almost one million women in the UK have left their job because of menopausal symptoms. The wider implications of such statistics for the workplace are far reaching. Not only are there important health and wellbeing issues to consider, women in this age group are also likely to be eligible for senior management roles. Their exit can lessen diversity at executive levels, contribute to the gender pay gap and feed into a disparity in pensions. Addressing the issues surrounding the menopause in the workplace can therefore help employers retain and recruit women with those skills and experience.

• Businesses should review their policies and assess how they impact employees with menopausal symptoms.
• If they have not already done so, employers should consider including menopause at work policies in their staff handbooks.
• Provide training for managers, supervisors and team leaders to make sure they understand how to have a conversation with a worker raising a concern regarding menopause, how the menopause can affect a worker and what support and/or changes for the worker might be appropriate.
• It is also advisable for an employer to raise awareness among all staff that it will handle menopause in the workplace sensitively, and with dignity and respect.

https://www.lexology.com/library/detail.aspx?g=543a4eb4-3b23-4a5c-8d59-f4cd982a797b


Women leaders in the workplace did more to tackle COVID-19, burnout than men: report
Women in leadership positions also took more action on diversity and inclusion, but it still remains a large problem in workplaces.   Women who hold leadership positions are outshining men on the same level when it comes to how they’ve supported their teams.
In , Lean In and McKinsey reports that 31 percent of employees say their manager who is a woman provided emotional support and 61 percent checked in on their overall well-being. Comparatively, 19 percent and 54 percent, respectively, of employees with a manager who is a man said the same thing.

Compared to male managers, women in leadership positions were also 29 percent more likely to help their employees navigate work and life challenges, 42 percent more likely to ensure manageable workload and 21 percent more likely to help prevent or manage burnout. 

The nonprofit also reported that women leaders championed diversity, equity and inclusion (DEI) initiatives more so than male leaders, an action that went unrewarded or unrecognized. 

“Senior-level women are twice as likely as senior-level men to spend substantial time on DEI work that falls outside their formal job responsibilities, such as recruiting employees from underrepresented groups and supporting employee resource groups. And women leaders are more likely to be allies to women of color,” Lean In and McKinsey wrote.

Sixty-one percent of women in managerial positions regularly take at least three allyship actions, compared to 48 percent of men who do. Allyship actions include advocating for new opportunities for people of color, actively confronting discrimination, giving credit to women of color, educating themselves about the experiences of people of color and mentoring. 

“Despite this added stress and exhaustion, women are rising to the moment as stronger leaders and taking on the extra work that comes with this,” the report wrote. “Yet this critical work is going unrecognized and unrewarded by most companies, and that has concerning implications.”

Still, inclusiveness in the workplace is not a priority overall, Lean In and McKinsey says, despite a renewed national and global push for racial equality in the wake of George Floyd’s death and the Black Lives Matter movement. 

“Despite increased focus on DEI and racial equity in corporate America, we see little improvement in the day-to-day experiences of women of color. Women of color face similar types and relative frequencies of microaggressions as they did two years ago,” Lean In and McKinsey’s report stated.

“They are far more likely than white women to be on the receiving end of disrespectful and ‘othering’ behavior,” the report continues.

White employees consider themselves allies to women of color (77 percent). But in reality, only 39 percent confront discrimination when they see it and only 21 percent advocate for new opportunities for women of color. Overall, white employees are no more likely than they were last year to confront racism and discrimination in the workplace. 

Another problem in the workforce is that 1 in 8 women of color are “double Onlys,” meaning they are the only woman and the only person of their race in the room.

As a result, women of color face higher instances of microaggressions than other women.

Part of the solution, according to Lean In and McKinsey, is for companies to reduce bias in reviews and promotions and increase accountability. 

More than 90 percent of companies track women’s overall representation, but when it comes to promotion rates, only 65 percent track gender differences.

Companies that hold senior leaders accountable for diversity goals account for about 70 percent, but 30 percent of the industry managers who are crucial in hiring and promotion are being held. 

Anti-racism training in the past year was conducted by 34 percent of employees, and 14 percent received allyship training.

https://thehill.com/changing-america/respect/equality/574116-women-leaders-in-the-workplace-did-more-to-tackle-covid-19




 

Protections for Employees Who Report Workplace Discrimination

 

While thousands of employees each year submit complaints of discrimination against their employers, many more experience workplace discrimination and do not submit a formal complaint or even report it internally. A 2016 study by the Equal Employment Opportunity Commission (EEOC) noted that three out of four individuals who experienced harassment never spoke with a supervisor, manager, or union representative about the harassment. Other studies estimate that only one percent of people who experience workplace discrimination file a formal discrimination charge.
 

Types of Discrimination Charges Filed

Even with a high level of underreporting of harassment and discrimination in the workplace, the EEOC reported that workers filed 67,448 charges of workplace discrimination in fiscal year 2020.[1] The EEOC breaks down the data by the characteristics of the individual who filed the complaint. The breakdown reflects the various bases for protection under federal anti-discrimination laws, specifically disability, race, sex, age, national origin, color, religion, and genetic information. In the EEOC data from fiscal year 2020, retaliation claims made up 55.8% of all charges filed, which was the most common claim asserted. Retaliation claims are often coupled with claims of discrimination because they generally require complaints about, or opposition to, discrimination in the workplace. Because of this overlap in claims and the reality that workers may have multiple characteristics or identities that entitle them to protections, the total of the percentages of the types of claims asserted is greater than 100%.
Following retaliation claims, discrimination claims based on disability were the most common in fiscal year 2020, making up 36.1% of all workplace discrimination claims. Fiscal year 2020 may have seen an even greater increase in disability-related charges due to the COVID-19 pandemic. The EEOC continues to update its guidance periodically on the impact of COVID-19 on workplace discrimination laws related to disability. Discrimination based on race made up 32.7% of claims, and discrimination based on sex made up 31.7%.

The breakdown by category is consistent with charge filing patterns in past years. One study conducted by the Center for Employment Equity of the University of Massachusetts Amherst analyzed all discrimination charges filed with the EEOC (or a comparable state agency) from 2012 to 2016. It determined that discrimination charges based on disability and race were the most common and that disability-related claims had become more frequent than charges based on other protected categories. In an article published by staff at the Center for Employment Equity, they determined that 63% of employees who filed a complaint eventually lost their jobs.
 

Protections from Retaliation

The data from the EEOC and Center for Employment Equity underscores an unfortunate reality for employees who come forward to report discrimination—they face the possibility of retaliation by their employer, which, at its most extreme, results in a loss of their job. Fortunately, there are legal protections in place for employees who face retaliation for complaining about workplace discrimination.

Employees who engage in protected activity, either by participating in an investigation of workplace discrimination, complaining of workplace discrimination, or opposing discrimination in the workplace, are protected from retaliation. This means that an employer cannot take any “materially adverse action” against these employees. Such actions include anything that would deter a reasonable worker from coming forward to complain about discrimination in the workplace.  This includes actions short of termination, like demotions or salary reductions. The law protects not only current employees and applicants, but also former employees and third parties who have a close relationship with the employee who experienced discrimination. Employees who face retaliation for reporting discrimination in the workplace may be entitled to monetary compensation for the harm caused by the retaliation, including back wages, reinstatement to their former position if they were terminated, compensation for emotional distress caused by the employer’s actions, and reimbursement of their attorneys’ fees and costs.

While no employee should face retaliation for reporting workplace discrimination or harassment, the data demonstrates that it is an unfortunate reality in workplaces. If you believe you have faced discrimination, harassment, or retaliation, you should contact an employment attorney to determine your options and how to proceed.
 

Importance of Seeking Legal Counsel

The Center for Employment Equity’s analysis highlighted another reality faced by employees who filed discrimination charges with the EEOC. Upon examining the outcome of each charge and excluding charges that were closed because of administrative reasons, it noted that monetary benefits and changes to workplace practices were relatively infrequent. In less than 20% of charges, employees received a monetary benefit.  Less than 10% resulted in changes to employer practices. This data does not account for employees who made complaints of discrimination and were able to reach a resolution with their employer prior to filing a charge.

This data showing the poor outcomes from filing discrimination charges demonstrates the importance of seeking legal counsel if you believe that you have faced discrimination in the workplace. An attorney can advise you on the merits of your claim as well as the appropriate deadlines for filing a charge and lawsuit, and can advocate for you before the employer, both before and after submitting a discrimination charge. For current employees, such advocacy may help to shield you from retaliation or to exit from your employment on more favorable terms. In addition to seeking legal counsel, you can begin to take other steps to assist your case by doing the following:

• Document the mistreatment you experience.
• Create a detailed timeline of instances of discrimination, which will assist an attorney who may assess your potential claims.
• Retain employment-related documents, like employee manuals; employment offer letters and agreements; and information concerning commission, equity, and benefits plans.
• Do not record conversations without the consent of the other party and without first seeking advice from legal counsel. Each state has different recording law statutes that require all parties or at least one party to consent to recording. It is important not to violate these laws, which can carry civil and sometimes criminal liability.

This list only identifies basic steps that you can take if you believe you have experienced discrimination or harassment in the workplace. If you have faced workplace discrimination, you should consult with an employment attorney for advice on your potential claims

[1] The number of charges filed has decreased steadily in recent years, with 72,675 charges of workplace discrimination filed with the EEOC in fiscal year 2019 and 76,418 filed in 2018. There may be multiple explanations for this decrease, though this year’s decline may be in part explained by the COVID-19 pandemic, which left many employees without work for much of 2020 and required others to work remotely.

https://www.natlawreview.com/article/protections-employees-who-report-workplace-discrimination

 

Schuster Company Agrees to Stop Using Strength Test to Settle EEOC Sex Discrimination Lawsuit

SIOUX CITY, Iowa – Iowa-based trucking company Schuster Co. has agreed to settle a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission, the federal agency announced today.

According to the EEOC's lawsuit, Schuster’s use of the CRT test, a strength test developed by Davenport, Iowa-based Cost Reduction Technologies, Inc., discriminated against women truck drivers because of their sex. Specifically, the EEOC alleged that the CRT test disproportionately screens out women who are qualified for truck driver positions at Schuster and that the test did not accurately distinguish between individuals who could and could not safely perform the job.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination, including the use of employment practices that have a disparate impact on women because of their sex and that are not job-related and consistent with business necessity.

The EEOC filed suit in U.S. District Court for the Northern District of Iowa after first attempting to reach a pre-litigation settlement through its conciliation process. The case is captioned EEOC v. Schuster Co., Civil Action No. 5:19-cv-4063. This settlement follows a recent summary judgment victory for the EEOC in a similar case involving the CRT test, EEOC v. Stan Koch & Sons Trucking, Inc. (D. Minn. Civil Action No. 0:19-cv-2148).

The three-year consent decree resolving the EEOC’s lawsuit against Schuster has been approved by the federal court. The decree requires Schuster to pay monetary damages and make job offers to a class of women whose job offers were revoked by Schuster after they failed the CRT test. The decree enjoins Schuster from using the CRT test in the future, or any other physical abilities test with a disparate impact on female drivers unless Schuster can demonstrate that the test is job-related for the position in question and consistent with business necessity. The decree also requires Schuster to make regular reports to the EEOC regarding its hiring practices for the duration of the decree.

“Removing unnecessary barriers that exclude qualified women from traditionally male-dominated industries, such as the trucking industry, is a priority for the EEOC,” said Julianne Bowman, the EEOC's district director in Chicago. “We are pleased that Schuster has agreed to stop using the CRT test and take steps to address the harm that its use of the test caused to female applicants at Schuster.”

Gregory Gochanour, the EEOC’s regional attorney in Chicago, added, “Employers that choose to use physical abilities tests must be aware of their obligations under the law. When a hiring screen has disparate impact on female applicants, the employer has the burden to prove that the test is job-related and consistent with business necessity. This can be a difficult task when the employer chooses to use a test like the CRT test, or other isokinetic tests that, in the EEOC’s view, have no obvious connection to the jobs at issue.”

The EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.

https://www.jdsupra.com/legalnews/schuster-company-agrees-to-stop-using-7737540/








 

NLRB challenges Kroger brands' ban on Black Lives Matter buttons

 

• Retailer Fred Meyer and grocer QFC — both Kroger brands — may have violated federal labor law when they refused to allow workers to wear Black Lives Matter buttons, according to the National Labor Relations Board.
•  
• The board's Seattle regional office told HR Dive it found merit to at least one charge related to the buttons and is seeking a settlement agreement.
•  
• According to a union representing the employees, UFCW 21, the agency found merit to allegations that the employers violated federal law by "1) failing to bargain with the Union over a change in workplace conditions — in this case the practice of allowing the wearing of buttons at work; and 2) prohibiting workers from taking action together — in this case, by wearing Black Lives Matter messages — to protest racism in the workplace and in society, generally." The employers did not respond to a request for comment.

Similar disagreements about workplace attire have cropped up at employers across the country during the past year.

Shortly after police killed George Floyd in May 2020 and the Black Lives Matter movement gained momentum, Starbucks prohibited workers from displaying Black Lives Matter messages at work. After widespread outcry, the employer walked back its policy, allowing such attire until it could distribute its own Black Lives Matter shirts.

Whole Foods is facing a lawsuit alleging it engaged in discrimination when it refused to allow workers to wear Black Lives Matter masks. While the employer reportedly maintains a policy prohibiting clothing with slogans and logos, workers alleged that policy went unenforced with respect to other causes.

Employers are mostly free to set dress codes, but some federal laws may require caution. For one, Title VII of the Civil Rights Act prohibits discrimination based on race and several other characteristics. In the Whole Foods example, the workers alleged Black Lives Matter attire was treated differently than items such as LGBT pride emblems.

And under the NLRB's purview is the National Labor Relations Act, which, among other things, protects actions workers take together — concerted activity — to improve their working conditions. It remains to be seen whether causes such as Black Lives Matter have close enough ties to the workplace to be protected, but NLRB previously held that employees who walked off worksites across the country for 2017's Day Without Immigrants were engaging in protected concerted activity.

https://www.hrdive.com/news/nlrb-challenges-kroger-brands-ban-on-black-lives-matter-buttons/607214/



Correct process | How to avoid unfair dismissal claims
It’s important that employers follow their organisation’s HR procedures, including any that could lead to an employee being dismissed. You should also be mindful that employees have access to an abundance of information on unfair dismissal claims on sites such as GOV.UK, ACAS and Citizens Advice.

While you may think that you’ve dismissed an employee fairly, it’s still possible for an individual to bring a claim of unfair dismissal. An employee can usually bring a claim for unfair dismissal when they’ve completed two years of continuous service. An employee may say for example:

• That the dismissal was unfair because you did not follow the correct process for disciplinary and dismissal.
• The reason given for the dismissal was not the real one or was unfair.
• That you acted unreasonably.

Taking advice at the earliest opportunity with an employment situation that may lead to a dismissal (i.e. absence management, redundancy, disciplinary or capability) is key. For example, an unfair dismissal claim relating to a disciplinary situation, often comes down to the investigation, or lack of investigation into the matter. An employer should conduct an investigation into the alleged offences, and obtain the employees’ response at the investigation, before a decision is made to convene a disciplinary hearing.

Remember, an employee doesn’t always require two years’ service to bring an unfair dismissal claim
Certain reasons for dismissal are called ‘automatically unfair’. These automatically unfair reasons are to do with the following:

• Pregnancy, including all reasons relating to maternity leave.
• Family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependents.
• Acting as an employee representative, trade union representative or occupational pension scheme trustee.
• Joining or not joining a trade union.
• Being a part-time or fixed-term employee.
• Pay and working hours, including the Working Time Regulations, annual leave, and the National Minimum Wage.
• Whistleblowing.
• Compulsory retirement on the grounds of age is unlawful unfair dismissal unless you can objectively justify it. Take advice as you could be challenged at an employment tribunal.

Ensure managers are trained in your procedures
When following HR procedures, managers should ensure they fully understand them, they should always take advice and they should follow guidance before commencing with any procedure. This is especially important where it could lead to the dismissal of an employee or multiple employees (for example a redundancy procedure). The impact of the COVID-19 pandemic has led to many businesses revisiting their staffing requirements and commencing consultation with their employees to restructure departments or even the whole business. Failure to follow a fair redundancy procedure (which could include missing out steps of the process) could lead to employees challenging decisions about their roles being made redundant.

The process being followed and the meetings that are held should be accurately documented and kept by the employer when dismissing an employee.

Make sure the right person is being appointed to handle the HR procedure
Always consider who in the organisation is the right person to follow the HR procedure. Your company size and management structure will impact on this decision. A tribunal will expect different parties to be appointed at each stage where possible. I.e. disciplinary investigation, disciplinary hearing chair, appeal chair. This ensures all parties can remain as objective as possible.

Treat employees fairly and consistently
Make sure you apply your HR procedures fairly and consistently. This will help avoid unfair dismissal claims and claims of discrimination because employees will be treated equally.

Consider any feedback or input from employees when following HR procedures
If an employee raises a grievance part way through a disciplinary or redundancy process, it does not necessarily mean the original procedure has to be put on hold. However, consider how this could look to an employment tribunal. Could the procedure the employee is complaining about seem rushed if it was not put on hold? It’s always best practice to take HR advice in these circumstances.

https://www.hrgrapevine.com/content/article/2021-09-10-how-to-avoid-unfair-dismissal-claims

 

Activision Blizzard Strikes An $18 Million Deal Over Its Workplace Harassment Lawsuit

Popular game maker Activision Blizzard reached an $18 million settlement with the U.S. government over allegations of sexual harassment and discrimination against female employees at the company.
Activision Blizzard, which is behind the hugely popular game franchises Call of Duty, World of Warcraft, and Candy Crush, confirmed the deal was reached with the U.S. Equal Employment Opportunity Commission (EEOC) on Monday. Earlier that day, the agency filed a civil rights lawsuit against the company in federal court in California.

In a seven-page complaint, the EEOC accused Activision Blizzard of failing to address claims made by employees about sexual harassment. The video game maker also allegedly discriminated against pregnant employees. If workers who suffered from harassment or discrimination complained, the company fired them, the EEOC says.

As part of the deal struck with the employment watchdog, Activision Blizzard agreed to use the $18 million to compensate eligible employees who were harassed or faced discrimination. The company also agreed to strengthen its workplace anti-harassment and anti-discrimination policies and programs.

Activision Blizzard said it is also developing an initiative to create software tools and training programs to improve workplace policies and practices for other tech employers.

CEO Bobby Kotick said in a statement Monday, "There is no place anywhere at our company for discrimination, harassment, or unequal treatment of any kind, and I am grateful to the employees who bravely shared their experiences. I am sorry that anyone had to experience inappropriate conduct, and I remain unwavering in my commitment to make Activision Blizzard one of the world's most inclusive, respected, and respectful workplaces."

Kotick added, "We will continue to be vigilant in our commitment to the elimination of harassment and discrimination in the workplace. We thank the EEOC for its constructive engagement as we work to fulfill our commitments to eradicate inappropriate conduct in the workplace."

In court documents, however, Activision Blizzard denied any wrongdoing.
 

Activision Blizzard is still facing other complaints by regulators

The EEOC said its lawsuit followed a three year long investigation, which went on during similar inquiries by other state and federal regulators.

Allegations emerged months ago following investigations by California regulators claiming Activision Blizzard fostered a "frat boy" culture.

Women were paid less than men and were assigned to lower level jobs, according to complaints to regulators in California. Female employees were also allegedly subjected to sexual harassment, which included comments about women's bodies and rape jokes, and groping.

In late July, California's civil rights agency sued the company, alleging gender discrimination and sexual harassment. Employees also staged a walkout to protest Activision's sexist culture.

The company is also facing complaints by the U.S. Securities and Exchange Commission over its handling of the harassment and discrimination allegations. Representatives for Activision Blizzard said last week they are complying with an SEC subpoena.
The labor union, Communications Workers of America, filed a complaint earlier this month with the National Labor Relations Board, accusing the game giant of violating federal labor law. Among the complaints are that managers threatened workers at the company against discussing wages, hours, or working conditions.

Additionally, a shareholder lawsuit in August said the company failed to disclose to investors that it was being investigated in California and that it had workplace culture issues that could result in legal problems.

According to the New York Times, Activision Blizzard has since made two big hires including a new head of human resources in an effort to show its attempting to address its culture.

https://www.wesa.fm/2021-09-28/activision-blizzard-strikes-an-18-million-deal-over-its-workplace-harassment-lawsuit


How to Avoid Discrimination When Using AI

Given the prevalence and rising use of artificial intelligence for customer service, feedback and general information, it's no surprise that HR teams are adopting AI-driven bots for workplace communication.

Companies are embracing bot tools as time and money savers to conduct and evaluate interviews, substituting them for face-to-face conversations. AI tools can also screen resumes, monitor employees and provide predictive analytics.

Jennifer Betts, an attorney with Ogletree Deakins, joined her colleague Joseph L. Beachboard during the session "AI, the Right Way: Avoiding Employment Discrimination with Artificial Intelligence" at the recent SHRM Annual Conference & Expo 2021 to discuss the trend.

The Emergence of AI
AI uses machines, or computers, to perform tasks in a way that is intelligent, in that the computers can change course depending on the information being collected. These tasks are conducted through algorithms, or a set of instructions for the computer to follow.
AI-enabled content generation and other AI-based tools have been available on the marketplace for years. Now they have transitioned from the "hype" of new technology to the adoption phase due to necessities resulting from the pandemic, Betts said.
There are many different forms of AI. The two most important forms for employers to understand are machine learning and natural language processing.

Machine learning involves AI systems that show improved performance as they are fed more data and as they predict more outcomes. In other words, they become wiser over time and through more extensive use.

Natural language processing is the branch of computer science—and more specifically, the branch of AI—concerned with giving computers the ability to understand text and spoken words in much the same way humans can.

AI today can be found in autonomous vehicles, injury prediction, fraud detection, precision medicine, photo tagging and "talk to text."

Proper AI Programming Is Key
AI-powered analytics tools make it easier to effectively and cheaply, for example, measure productivity, identify trends and recognize potential areas for improvement—all necessary enhancements in the workplace of the future. 

There are many slow adopters and skeptics of AI. Betts said it's important to realize that "Artificial intelligence itself is neither inherently good nor inherently bad. It's critical to remember that AI's effectiveness is all about how the AI and bots are programmed and maintained, not the concept of AI itself." 

AI and Hiring Practices
AI has grabbed a lot of headlines about hiring lately, with articles reporting on how applicants can "beat the system" and have their resumes gain more attention by using and prioritizing specific words and phrases that suggest they are a better fit for the job description.

Many organizations utilize AI during the initial stages of the hiring process, such as to deliver programmed questions to applicants via a robot, which can save time for hiring managers who may be considering dozens of candidates for a position. 

AI also can decipher the responses given—or words and phrases used on a resume—so that companies can narrow their search for viable candidates.

By looking at word choice, for example, it can uncover any potential biases in the responses—or even in the way questions are framed by the company to the candidates.

Anti-Discrimination Legal Guidelines
This is where things can become legally complicated for employers. Employers must be aware of federal anti-discrimination laws such as those administered by the Equal Employment Opportunity Commission (EEOC), Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act (ADEA), Genetic Information Nondiscrimination Act of 2008 (GINA), and the Americans with Disabilities Act of 1990 (ADA).

Under most federal anti-discrimination laws, employers may be sued for disparate treatment or disparate impact. According to the EEOC, disparate treatment "occurs when an employer treats some individuals less favorably than other similarly situated individuals because of their race, color, religion, sex, or national origin. To prove disparate treatment, the charging party must establish that respondent's actions were based on a discriminatory motive." 

Disparate impact occurs when "discrimination results from neutral employment policies and practices which are applied evenhandedly to all employees and applicants, but which have the effect of disproportionately excluding women and/or minorities."

To avoid claims of disparate treatment or disparate impact, Betts recommended establishing methods of validation of any employment screening tool, including AI-enabled tools; establishing pre-employment testing scores; and documenting validity. 

State Law Summary
Employers using AI-powered tools must also be mindful of compliance with state law because the list of states with laws applicable to hiring and AI is growing. Among them:

• Maryland and Illinois: Both states have passed laws relating to the use of facial recognition software with employment applicants.
• Connecticut: Along with other states, Connecticut requires certain disclosures regarding any employer electronic monitoring.
• California: California has passed a concurrent resolution promoting the use of AI in the employment setting and has comprehensive data privacy law.
• Illinois, Texas and Washington: All three have laws relating to biometric privacy.

Other AI Uses
Sensitive communication. Bots can be used to streamline communication between a company and its workers. For example, an employee might be hesitant to share certain details of a case of bias with a person, but could be more willing to respond to questions from a bot. There are a lot of comfort-level issues to be worked through with AI-human communications in general, though.

Employee monitoring. AI can be used in employee tracking, such as monitoring desktop activities, blocking distractions, and calculating work time and break time.

When using employee monitoring software, the company should roll it out with an effective communications campaign. An employer should consider telling employees what is being tracked, how and why. Monitoring can be controversial and, if not communicated properly, may lead employees to believe they are on an episode of "Big Brother." 

Given the fiercely competitive hiring environment today, where so many employees (over 40 percent) are looking for other jobs, HR professionals don't want to give workers a reason to leave the company.

Therefore, Betts said, "In most instances, state laws require you to protect employees' privacy rights by giving them advance notice of your monitoring. The best practice is to get employees' consent for monitoring in writing."

HR Best Practices
Employers that are considering using AI-powered tools in their workplace may do well to keep the following in mind:

• Develop multidisciplinary innovation teams that include legal and human resource staff.
• Continue human review of AI-assisted decision-making.
• Implement disclosure and informed consent when necessary and appropriate. 
• Audit what is being measured before implementing the program and on an ongoing basis.
• Impose tight controls on data access. 
• Engage in careful external vendor contract reviews. 
• Work with vendors that take an inclusive approach to design. Consider whether the designers and programmers come from diverse backgrounds and have diverse points of view.
• Insist on review of external validation studies.

Choosing an AI Software Partner
There are many firms that can provide AI software for the workplace. Betts said it is critical for employers to carefully review any contracts and provided a list of questions employers should ask when weighing their options. Betts suggested asking vendors the following questions:

• What kinds of statistical analysis do you perform to test your products, and how and why did you select those methods?
• What were the results of your analysis? Can I see a copy?
• Do you retest for disparate impact over time? How frequently?
• Can you give references for companies that have used your services or tool?
• Do you have diversity consultants or similar staff with whom you consult regarding your tools?

 https://www.shrm.org/resourcesandtools/hr-topics/technology/pages/how-to-avoid-discrimination-when-using-ai.aspx


“Officism,” a New Type of Workplace Discrimination, Could Disrupt Post-Pandemic Hybrid Work Plans

TEMECULA, Calif., Sept. 21, 2021 (GLOBE NEWSWIRE) -- With the coronavirus Delta variant summer surge delaying many return-to-office plans, a new source of conflict could erupt between workers who have returned to the office and those continuing to work remotely. The conflict could disrupt any chance of a smooth transition to a hybrid workplace.

Perceptyx, a leading employee listening company, found evidence through its work with Fortune 500 customers and a panel research survey of more than 1,000 working Americans, that officism – defined as negative attitudes toward employees who continue to work remotely instead of returning to the office – is clearly present in today’s workforce. The news for remote workers gets worse. Managers, who are directors or above, exhibit the highest levels of officism compared to individual contributors. Those managers are the same people who are designing hybrid work plans while the Delta variant of COVID-19 still surges around the world.

More than half of the respondents to the survey viewed remote colleagues unfavorably, even though research shows that remote workers are just as productive as their physical workplace counterparts. Nearly two-thirds of employees have become accustomed to working remotely and say they want to continue to do so indefinitely.

“If these views persist, it’s likely there will be long-term disadvantages for those employees who want ultimate flexibility in where, when and how they work,” said Dr. Brett Wells, Director of People Analytics at Perceptyx. “The high officism level we’re seeing in management is particularly troubling if employers want to retain those employees who aren’t sure about returning to the physical workplace. It’s important to educate managers and make workplace policies that demonstrate fairness and avoid potential conflicts between the two groups.”

Those who harbor high levels of officism believe that employees are not as productive when working remotely (59% of U.S. workers), that there is greater potential for career growth for those in the physical office (68%), and that co-located managers and employees have better relationships (76%).

After running a comprehensive listening program across its 15,000-member workforce, one Fortune 500 Perceptyx client found that employees’ attitudes toward remote work varied greatly by job profile.

First the company devised specific personas based on how and where employees worked, paying particular attention to hybrid roles. Corresponding manager profiles connected to the personas informed future training programs and aimed at preventing officism effects.

Survey data was sorted by persona to inform, support and resource efforts during the transition to in-office work. Just one out of four employees said returning to the office would be easy for them, and barriers to this were largely centered around work-life balance and personal safety. The company took this direct feedback and designed its return-to-office plans with the personas in mind. For example, they learned that employees would feel more comfortable returning to the office with flexible scheduling, physical distancing, and frequent cleaning, among other health and safety measures. Survey-informed personas were used as foundations for employee experience journey maps, playing out key employee-manager interactions over the initial three-month return-to-office.

Gen Z employees show high levels of officism, ready to return to office 
In the Perceptyx study, Gen Z respondents, surprisingly, showed the highest levels of officism:

• 73% believe working remotely poses too many distractions.
• 77% believe it is more effective to collaborate when everyone is physically together.
• 83% believe it is easier to gauge productivity when employees and managers are in the same physical location.

While the stereotype of millennials paints them as living on their phones and preferring remote work, the evidence points to quite the opposite. They may be the workers most willing to return to the office compared to older cohorts.

Ways to curb officism
Wells said that while officism might be a longstanding feature of the workplace in a hybrid work environment, there are several ways to combat it with employee listening programs:

1. Move beyond traditional performance measures: Employers will have to rethink basic annual supervisor ratings of performance where everyone “meets expectations.” For example, employers might want to ask: “If this person left the company, would you rehire him/her?” Connecting organizational success to team and individual performance, then testing for officism is a better way forward.
2. Emphasize skill development, talent mobility and high potential identification. Just as you would test and ensure that protected groups of individuals have equitable opportunities, add remote workers to this list and communicate success stories of remote employees who continue to grow and develop in their careers.
3. Foster relationships. Listening programs should be finding ways remote employees can build connections. Hiring for an HR role that is responsible solely for the remote employee experience will add expertise and help ease the shift to hybrid.

https://finance.yahoo.com/news/officism-type-workplace-discrimination-could-130000874.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAGY5OOjAGTsOHY03dOU-vKC-uS9BfmHD8tQ0MMe4f-_nAaFLNuVZco26ddqT8urCzUug0CQWh_V5_SyvFYKBrqI6OJROLNZnTqZ_YTz2_ltf3JzpK61AQAlFBNUnVZxoSJBjRhYRpcA7FbnTusWoMW7fxx0sUk074g7kPngVrU6V