FEBRUARY DIVERSITY, EQUITY, AND INCLUSION UPDATE
FEBRUARY DIVERSITY, EQUITY, AND INCLUSION UPDATE
Feb, 1st, 2021
Matt Glowacki, Diversity & Inclusion Chair
Jefferson County HRMA
Three Things Millennials Need to Know About Age Discrimination
40 years old is the age that the federal Age Discrimination in Employment Act (ADEA) starts to protect workers from age bias on the job. That's a big deal for millennials. Even though they still often are thought of as perpetually young, the oldest members of that generation—which includes people born in 1981 through 1997—turn 40 this year.
"Older millennials are still assumed to be young,” says Elizabeth Tippett, an associate professor at the University of Oregon School of Law. “I don't think we've yet seen what the stereotype version of older millennials is. It might be not being able to type as quickly on your smartphone or not being on TikTok or using Facebook too much? I don't know. We have yet to see what the stereotype older millennial is."
Part of where that perception of older millennials will be shaped is in the workplace. While age discrimination isn't something for members of the generation to look forward to, it is something they should be prepared for. According to the Equal Employment Opportunity Commission (EEOC) — the federal agency responsible for handling discrimination complaints — people ages 40-54 accounted for 37 percent of all age-discrimination complaints in 2017. While the age range within that group is significant, the percentage suggests that even among the youngest people protected by federal discrimination law, many are experiencing what they see as bias in the workplace.
Age bias in employment takes many forms
Firing someone because of their age or declining to hire someone based on age are two of the most recognizable ways that older workers may face discrimination in the workplace. But age bias certainly isn't limited to those two situations.
"If you feel like you're being passed over for some plum assignments, if you've asked to go to training and you've been told the budget doesn't allow for it — yet you see a younger colleague being able to go to those trainings — that's when your radar needs to go up,” McCann says. “Nobody wants to think of themselves as getting older, but you need to put your pride aside and recognize that you could be facing discrimination based on your age."
Age bias may also occur in the form of comments by coworkers or other types of harassment in the workplace. The term “millennials” sometimes is cast as a pejorative, blaming that age group for any new trends or changes in American culture — everything from the rise of avocado toast to the end of shopping malls. But now that some members of this generation are old enough to be protected by the ADEA, comments blaming such things on millennials soon may no longer be acceptable on the job.
They key is context. McCann advises millennials — and anyone else who thinks they may be experiencing bias at work — to keep records of any incidents.
"Keep a diary or journal of what you see if you start to suspect age discrimination,” she says. “Write down any comments that you're hearing, who said them and in what context, and who heard them."
Records like these are important if you ultimately decide to pursue any legal action, which you would begin by hiring a lawyer and filing a complaint with the Equal Employment Opportunity Commission (EEOC). Another way you could pursue your concerns about age bias is through a conversation with your supervisor or manager, or your company's human resources department.
Some industries can be worse than others
Just as each person has a unique experience with growing older, many professions have implicit biases about when someone may be less desirable due to the person's age.
"If you're in the tech industry, 40 might be old,” Tippett says. “Or, if you're working in a manual-labor job, you may be starting to get a lot of injuries and 40 starts to feel old. But in a lot of other sectors, a 40-year-old worker is just sort of reaching the height of their power in the workplace,” she says.
"In some industries, it hits people younger than others,” McCann says in agreement. She cites certain fields such as banking and accounting, advertising, and local broadcast news as other industries in which some workers may face age discrimination even before they turn 40. It's worth noting that while the federal age discrimination law starts at 40, some states have their own laws that may offer protection at younger ages. For example, New Jersey's law also protects workers age 18 and older from being discriminated against for being considered too young.
Age discrimination can start earlier for women
Research shows some millennial women already may have experienced age bias before their 40th birthday. One study by Texas A&M economist Johanna Lahey asked 150 people to rate a group of 40 résumés. The ratings for women's résumés started to drop sharply once the candidates’ age hit 36, while the ratings for men's résumés didn't start to drop until the men were in their 50s.
"A lot of people are shocked when age discrimination hits, because it's something totally new to them. They've never really had to think about being treated unfairly or unlawfully in the workplace or anywhere."— Laurie McCann, senior attorney for AARP Foundation Litigation
A similar study by David Neumark of the University of California, Patrick Button of Tulane University and Ian Burn of the University of Liverpool sent out more than 40,000 résumés to see how many responses they got from interested employers. The résumés for women got significantly fewer responses by the time they turned 50 than those for men roughly the same age.
"Older women should almost be their own protected class, because age and gender intersect so much to cause unfair treatment to women in the workplace,” McCann says.
These studies suggest how important it can be to “age-proof” your résumé. That means removing details both obvious (graduation dates) and subtle (how your résumé is formatted) that might encourage recruiters to make guesses about your age.
SCOTUS Expands Federal Fair Employment Protections
Recently, the U.S. Supreme Court ruled that Title VII of the 1964 Civil Rights Act barring sex discrimination in the workplace also protects LGBTQ employees from being fired or disciplined based on their sexual orientation.
In a 6-3 ruling in Bostock v. Clayton County, the Court found that, “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: an employer who fires an individual merely for being gay or transgender defies the law.”
Writing for the majority, Justice Gorsuch recognized that while Congress may not have anticipated the application of Title VII’s prohibition against sex discrimination to gay and transgender employment rights, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
The Court’s ruling encompasses three separate cases: Gerald Bostock of Clayton County, Georgia, who worked as a child welfare advocate before being fired for joining a gay recreational softball league; the estate of Donald Zarda, who worked as a skydiving instructor in New York before being fired because he was gay; and Aimee Stephens, a transgender woman who was fired from her job as a funeral home director in Garden City, Michigan.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” Gorsuch wrote.
The ruling has been heralded as a landmark for LGBTQ rights in the U.S. Laws prohibiting discrimination based on sexual orientation or gender identity protect employees in 22 states and the District of Columbia, but there has been no federal law that specifically bars such discrimination.
Justice Alito’s dissenting opinion, joined by Justice Thomas, accused the majority of legislating from the bench by adopting a textual interpretation of Title VII: “There is only one word for what the Court has done today: legislation.”
Justice Kavanaugh also penned a dissenting opinion, writing that, “Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning.”
No ADA violation: Employee fired for failing test, not his disability
Is it a violation of the ADA when an employee is dismissed from their job because their disability prevents them from doing it properly?
Chase Frost worked as a firefighter for the city of Philadelphia when he obtained an injury on the job.
After his injury, Frost expressed interest in becoming a paramedic.
Though initially denied the first time he applied, a physical therapist examined Frost and cleared him for participation in the paramedic academy training class. However, Frost went on to fail a patient protocol test twice.
He then sued, claiming disability discrimination.
Frost claimed the city didn’t allow a physical therapist to examine him in time to enroll in the training class the first year he wanted to, thus amounting to disability discrimination.
But the 3rd Circuit disagreed. It said Frost wasn’t qualified the first year he applied because of his injury, and the timing of his evaluation wouldn’t have changed that.
Furthermore, Frost’s firing wasn’t discrimination either because the city had fired other employees for failing the same test as Frost.
Policies were followed and the ADA wasn’t violated, the court said.
Cite: Frost v. City of Philadelphia, 1/6/21.
EEOC Guidance Addresses Religious Discrimination in the Workplace
On Jan. 15, 2021, the U.S. Equal Employment Opportunity Commission published updated guidance to its Compliance Manual on Religious Discrimination. The revised guidance, the first substantial update since 2008, came just five days prior to Inauguration Day and passed by a narrow 3-2 commissioner vote.
The EEOC aimed to clarify Title VII religious discrimination laws in the workplace, including the definition of “religion,” the scope of the religious organization exemption, and when reasonable accommodations must be made for religious reasons. As the split commission vote suggests, the new guidance faced broad opposition and the EEOC addressed a wide range of public comments in an addendum to the guidance.
What falls under the definition of “religion”?
As part of the EEOC’s standard 30-day public input period, commenters expressed concerns regarding the manual’s definition of religion. Specifically, several civil rights organizations asked the EEOC to clarify that “a lack of religious faith” is protected under Title VII, just like any other religious view. Accordingly, the manual explicitly provides that “[t]he non-discrimination provisions of the statute also protect employees who do not possess religious beliefs or engage in religious practices.” Employers must recognize that Title VII protects any and all approaches to religion.
Which types of organizations qualify for the religious organization exemption?
The religious organization exemption allows “a qualifying religious organization to assert as a defense to a Title VII claim of discrimination or retaliation that it made the challenged employment decision on the basis of religion.” While courts consider several factors, including an entity’s for-profit status, when assessing whether a religious organization qualifies for the exemption, the new guidance clarifies that no single factor is dispositive. Previously, the for-profit nature of an entity excluded it from the exemption under Title VII. In acknowledging the change, the EEOC stated that “it is possible courts may be more receptive to finding a for-profit corporation can qualify” for the exemption. Thus, the guidance potentially expands the types of employers eligible for the religious organization exemption.
When must an employer make reasonable accommodations for religious reasons?
The revised guidance provides that “a denial of religious accommodation absent undue hardship is actionable,” even without an additional adverse action against an employee. Stating that the policy is consistent with its 2008 guidance, the EEOC asserted that a failure to accommodate an employee “where a work rule conflicts with his religious beliefs necessarily alters the terms and conditions of his employment for the worse.” The manual mentions that methods of accommodation include: “(1) flexible scheduling; (2) voluntary substitutes or swaps of shifts and assignments; (3) lateral transfers or changes in job assignment; and (4) modifying workplace practices, policies, or procedures.”
To improve the accommodation process, the EEOC encourages open communication between employers and employees. While an employer is not required to accommodate based on the employee’s preference, an employer that is willing to listen to employees can improve workforce morale and avoid potential religious discrimination claims in the future.
In light of this new guidance, employers should remain vigilant regarding religious bias and religious accommodation issues in the workplace. With the recent change in administrations, employers should also prepare for additional shifts in discrimination policies. Notably, the two dissenting commissioners to the Jan. 15 guidance, Charlotte Burrows and Jocelyn Samuels, are now the respective chair and vice chair of the EEOC under the Biden administration.
Biden Aims to Tamp Down on Asian Bias Spike Fueled by Pandemic
The Biden administration’s attempt to curb xenophobia directed at Asian Americans and Pacific Islanders follows a spike in hate crimes and incidents of assault, bullying, and shunning during the Covid-19 pandemic.
President Joe Biden signed a memorandum on Tuesday acknowledging those harms and said his administration will condemn and denounce such discrimination. The action has immediate implications for employers and their workers, who have reported coronavirus-related harassment and discrimination directed at Asians and Pacific Islanders, according to attorneys and academics.
His move stands in contrast to former President Donald Trump and Republican leaders referring to Covid-19 as the “Chinese virus” throughout the pandemic, referring to its origin in Wuhan, China. Racial slurs such as the “Kung Flu” erupted on Twitter.
Biden’s memorandum directs the Department of Health and Human Services to consider issuing guidance describing best practices to enhance cultural awareness, and for the Justice Department to work with Asian American and Pacific Islander communities to prevent hate crimes and harassment.
And while the memo doesn’t explicitly include additional job protections, it still touches on workplace issues, according to Littler Mendelson shareholder David Goldstein. He assists employers with workplace legal compliance.
“In explicitly condemning inflammatory and xenophobic rhetoric while emphasizing the contributions of Asian Americans and Pacific Islanders during the current crisis and in the past, the president makes it easier for employers to advance workplace policies that are focused on respect and inclusion and also, hopefully, shifts the focus for some employees from perceived grievances to shared values,” he said in an email.
The U.S. Equal Employment Opportunity Commission signaled last year that workplace bias against Asian people could be heightened, similar to what happened to Muslim Americans in the aftermath of the Sept. 11, 2001, terrorist attack. The bipartisan civil rights agency, which enforces anti-discrimination laws among private employers, spoke out against offensive rhetoric targeting Asians.
In his first week in office, Biden has rolled back several measures and policies from the Trump administration, including an order that banned diversity initiatives at companies that allegedly promoted anti-White animus. Focusing on these policy changes could telegraph where the federal government could ramp up anti-discrimination enforcement.
“There is a role for federal and state governments to play. We want to make sure they do it in an appropriate manner, so that people feel safe,” said Manjusha Kulkarni, executive director of the Asian Pacific Policy and Planning Council. "Promising is a first step. It’s important to signal to Americans that racist rhetoric won’t be tolerated. The next step is to act on that.”
The EEOC didn’t immediately provide updated statistics on the number of charges the agency has received during the pandemic alleging discrimination or harassment against Asian American and Pacific Islander workers.
However, following 9/11, the agency saw a 250% increase in the number of religious discrimination charges involving Muslims. Worker must file discrimination charges with the agency before suing an employer.
The DOJ’s Civil Rights Division also combats discrimination on the basis of race and national origin in a number of sectors, including state and local government employment.
Responding to a request for comment on the rise of hate crimes against Asian Americans and Pacific Islanders during the pandemic, the department pointed to its website, which contains data through 2019. More than 57% of single-bias incidents cataloged that year were motivated by race, ethnicity or ancestry bias.
Recent reports and academic studies have attempted to capture the breadth of the discrimination that Asian communities have faced during the pandemic.
The Asian Pacific Policy and Planning Council’s Stop AAPI Hate tracked 2,800 reports of bias since March using an online reporting system that found these groups were spat on while out walking, told to leave establishments, and assaulted.
The council also tracked reports of discrimination in the workplace, housing, and public accommodations, finding examples of name-calling, targeted firings, and other harassment. Asian Americans have also been hit harder by job losses during the pandemic, as compared to other groups of workers, with almost half of jobless Asians out of work for at least 27 weeks.
Asian Americans felt the effects of the pandemic beyond medical and financial concerns, according to a July report from the Pew Research Center. Among all U.S. adults, 39% said it is more common for people to express racist or racially insensitive views about people who are Asian than it was before the coronavirus outbreak.
Solutions to Bias
Kulkarni of the Asian Pacific Policy and Planning Council said education and tracking data about hate crimes and incidents would be a positive way for the administration to address discrimination. She said only tracking incidents that rise to the level of a crime fails to capture the gravity of the animus against Asian Americans.
More education could serve to cut down on violent crimes and microaggressions toward Asians, said Sara Waters, a Washington State University professor who authored a study on Asian American harassment during the pandemic.
Waters surveyed 400 people and found similar findings to other groups about harassment, assaults, and bullying. But she said Asian Americans who lived in diverse communities said they didn’t experience bias. This could indicate that education and awareness of different cultures could help tamp down on xenophobia, she said.
“It will be important for this administration to be proactive and figure out people’s health and well-being and recovery in a lot of ways,” she said.
Woman lost her job because of reorganization, not age bias, court rules
- A reorganization was a legitimate, non-discriminatory reason to terminate a woman's employment, the 6th U.S. Circuit Court of Appeals ruled (Drews v. Berrien County, Michigan, No. 20-1267 (6th Cir., Jan. 15, 2021)).
- A payroll specialist sued her former employer after she was let go after a lengthy career with the Berrien County Road Commission in Michigan. She alleged age discrimination under state and federal law. The county, however, said she was dismissed because of a reorganization after Berrien County absorbed the commission.
- A district court ruled for the employer, and the appeals court affirmed. The county said the specialist's responsibilities were transferred to the county's existing HR department. The plaintiff argued, among other things, that the county's reason for eliminating her position was a pretext because the county payroll clerk did not assume all of her responsibilities. The court rejected the argument, noting that most, but not all, of the specialist's responsibilities were taken over by the HR department, and other employees took over the rest of the tasks. The court said it had "repeatedly recognized" that consolidation of duties is a legitimate, nondiscriminatory reason to terminate an employee, even when the person whose employment was terminated had a positive performance record. The plaintiff also argued that her co-workers made several age-related comments that were evidence of pretext. Noting that discriminatory remarks, even by a nondecisionmaker, can serve as evidence of pretext, the court said nothing in the record attributed the offensive comments to the decision to eliminate her job.
The federal Age Discrimination in Employment Act forbids discrimination based on age against applicants and employees age 40 and older.
Employers should exercise caution when planning layoffs or carrying out staff reorganizations, legal experts previously told HR Dive. Older employees tend to be more senior and more highly paid, so when business leaders lay off those making the most money, they could be setting the stage for an age discrimination complaint. To defend against such claims in the wake of a reorganization, HR should consider the implications and thoroughly document all negative employment decisions.
While the court in this instance noted that the allegedly ageist claims made by co-workers didn't have an effect on the decision makers, employers should be aware that managers and front-line supervisors are a leading cause of bias claims. A woman who was allegedly called a "little old lady" by her manager, along with multiple other offensive comments, was allowed to proceed with her lawsuit. And a 58-year-old employee whose 52-year-old supervisor allegedly made multiple negative comments about her age was also allowed to move forward with her age bias claim.
Experts recommend that supervisors and managers be provided with regular training on the relevant local, state and federal laws and on how to prevent harassment, discrimination and retaliation. HR also can help by developing and implementing policies that support inclusion.
Employer’s Guide to Disability Leave
If one of your employees has a chronic illness or is unable to perform their job functions as a result of injury or illness, that employee may need to take disability leave until they are able to work again. As an employer, you need to understand what disability leave is, how it differs from other leave policies, and what your obligations are concerning disability leave for your employees.
What is disability leave?
Disability leave is a leave of absence granted to employees who have become unable to perform the functions of their job as a result of a physical or medical condition, or temporary disability, with or without reasonable accommodation. The Americans with Disabilities Act ensures that any employee who cannot perform their job functions has the right to take disability leave or to a reasonable accommodation. The ADA applies to any employer with at least 15 employees. It's important to note that any injuries or illnesses that occur on the job are typically covered by workers' compensation, not disability.
Disability leave does not count as paid time off (PTO), but rather as an approved absence provided as an accommodation. Generally, short-term disability leave is provided as part of a private insurance program. Employees must be covered by a short-term disability policy to make use of the benefits. As an employer, you can offer short-term disability plans to your employees, or they can choose to purchase one elsewhere.
"Disability leave is not a required form of leave to offer employees," said Peter Horne, content lead at Geoff McDonald & Associates. "It's an insurance policy that employers may offer to employees or which employees can pay for themselves if need be, whereby they're compensated for a portion of their income while they're out on FMLA leave."
What is the difference between FMLA and disability leave?
The Family and Medical Leave Act, or FMLA, is a labor law that requires employers to provide employees with unpaid leave for family issues, such as adoption, pregnancy, family or personal illness, or military leave. It also ensures the continuation of health insurance coverage and job protection while the employee is away from work.
"FMLA broadens protections and coverage across a range of situations preventing the employee from working," said Jim Pendergast, senior vice president and general manager at altLINE. "That could be medical, but it might also be because of a family emergency, an adoption, or because of situations related to military deployments, for instance."
FMLA guarantees any employee who has been working for at least a year for an employer with 50 or more workers the right to take up to 12 weeks of unpaid leave to recover from a serious health condition or injury, as well as the ability to return to the same job or a job that is equivalent in pay and benefits after their leave.
"The main difference between FMLA and a disability leave is the compensation," said Lewis Mayhew, CEO and founder of South Scaffolding. "FMLA-eligible employees are not paid [during the leave], and [it] usually applies to an employee's family but also to the employee's own health condition as well. Disability leave is a doctor-approved personal injury or illness, and compensation is at the discretion of the employer. FMLA is also applicable to employees who have worked in an organization for at least a year, so it is ideal for long-term employees."
Who is covered under disability leave?
Most employees are eligible for disability leave, provided they meet the requirements of their insurance provider. In addition, many providers have eligibility requirements as to the employee's minimum earnings, how long they have been an employee, and whether they are a full-time or part-time worker.
To qualify for disability leave under the ADA, the employee must have a physical or mental impairment that significantly limits one or more "major life activity" or "major bodily function." Chronic conditions, such as cancer and Crohn's disease, can also qualify as disabilities. The ADA defines major life activities as:
- Performing manual tasks
- Taking care of oneself
These are some of the major bodily functions that may be impaired:
There are two main types of disability leave: short-term and long-term.
Short-term disability (STD) leave is an insurance benefit that provides compensation or income replacement for non-job-related injuries or illnesses that leave an employee unable to work for a limited time. Additionally, short-term disability policies will pay for employee benefits for a limited time, such as for three months to a year. Generally, short-term plans are cheaper when purchased as part of a group plan used as a company-paid benefit. Employers in California, Hawaii, New Jersey, New York and Rhode Island are required to purchase STD insurance for their employees.
Long-term disability (LTD) leave pays benefits for anywhere from two years to life, depending on the employee's condition and the policy. The premium goes up the longer the benefit period.
The two types of policies are designed to work together, since STD leave is meant to cover an employee immediately following a serious injury or illness, while LTD insurance is meant to replace income if an employee is kept out of work past the end of their short-term disability benefits period.
Short-term and long-term disability benefits work together by having short-term policies pay for employee benefits during the waiting period before long-term benefits (if necessary) kick in.
- Immune system
- Digestive system
- Cell growth
- Neurological system and brain
- Circulatory system
- Endocrine system
- Reproductive system
What are an employer's responsibilities regarding disability leave?
As an employer, you need to know what you are required – and not required – to provide or do regarding disability leave. Here are six of the most important things to know.
1. You are required to purchase STD insurance in certain states.
If you are an employer in California, Hawaii, New Jersey, New York or Rhode Island, you are required to purchase STD insurance for your employees. Depending on your state, you may be able to choose between a state and private policy. You might also have the choice of paying for the policy yourself, having employees pay it, or sharing the cost.
2. You are only required to provide disability leave by law in certain situations.
As an employer, you can establish policies that apply to all employees regardless of disability status, but you cannot refuse leave to an employee with a disability if other employees are offered leave. You might also be required to provide reasonable accommodations, such as flexible hours or unpaid leave.
3. You are not required to provide disability leave for an employee's relative.
Under the ADA, you are not required to modify your leave policy to allow an employee to care for a family member – employees can only use disability leave for themselves. However, the FMLA covers unpaid leave for an employee to care for a family member.
4. You are required to hold an employee's job for them while they are on leave.
Under the FMLA, when the employee returns from leave, you must give them either their same job back or a job that provides the same salary and benefits as their previous position. Additionally, you must continue to provide the employee with health insurance during their leave.
5. You are not required to pay employees who are on disability leave.
As an employer, you are not required to provide paid leave under the ADA or FMLA. California, Hawaii, New York, New Jersey and Rhode Island, however, all require some form of paid leave.
6. You must have a certain number of employees for the FMLA and ADA to apply.
The ADA and FMLA only intersect if your business has 50 or more employees. This is because the ADA applies to businesses with 15 or more employees, while the FMLA applies to businesses with 50 or more. Each law also has different parameters as to what qualifies an employee for leave. For example:
- If an employee is injured on the job, they are covered by workers' compensation.
- If an employee has a serious health condition, they are covered by the FMLA.
- If the employee's condition meets the definition of a disability, they are covered by the ADA.