November Diversity, Equity, And Inclusion Update
NOVEMBER DIVERSITY, EQUITY, AND INCLUSION UPDATE
Nov. 3rd, 2021
Matt Glowacki, Diversity Equity & Inclusion Chair
Jefferson County HRMA & WI SHRM
Managing Resistance To Diversity, Equity And Inclusion Workplace Initiative
Prompted by a shift in national sentiment, many companies have made a commitment to creating a workplace that embraces diversity, equity and inclusion (DEI). If your organization is part of that movement and you’re implementing a DEI program (or planning to), you could be facing some challenging resistance. The good news is that there are effective strategies for managing resistance to DEI.
Strategies For Managing Resistance
As you dive into understanding resistance to your DEI program, remember that every organization starts from a different point — and whatever the starting point is for your organization is the right place to begin. Consequently, your challenges and version of “success” may differ from other organizations. With that in mind, let’s look at strategies for addressing the resistance you may encounter as you implement your DEI program.
1. Make the business case: Make the case that there are solid business reasons for having a DEI program. According to research from McKinsey, Boston Consulting Group and others, organizations that embrace DEI are more innovative, collaborative, productive and better positioned for long-term financial success.
2. Explain the legal perspective: Explain that every organization has a legal right and responsibility to ensure that employees are conducting themselves in a way that is consistent with both state and federal laws regarding anti-discrimination, bullying and harassment. Your legal counsel can provide you with specific language on this point.
3. Focus on human values: Help your managers and employees to understand that at the heart of it, diversity, equity and inclusion represent basic human principles — like kindness, fairness and respect. Education and training help put these principles into practice and create a construct for how we can interact with each other in a positive and supportive way.
4. Communicate from a point of inclusivity: Emphasize that everyone is part of the solution and that no one will be shamed, blamed or targeted. The goal is to bring everyone together in a work environment where people feel engaged, connected and have a sense of belonging. Convey that an inclusive culture benefits everyone and that no one is excluded from the rewards it can offer.
5. Explain unconscious bias: We’ve all had different life experiences and unconscious bias exists in all of us, so it’s natural to have blind spots. Bias can serve to benefit some people (like when we feel comfortable with them) or exclude them if their identities are not like our own. Education can reveal how different people experience the same workplace in very different ways — and offer strategies and tools to check our own behavior and support others to do the same.
6. Provide a safe place for learning: To conquer resistance, participants should have a safe space for learning, allowing time for self-reflection and personal discovery without feeling pushed to immediately react to what they’ve learned in front of others. A setting where your learners feel most relaxed and comfortable will help them be more open to taking in new ideas and concepts.
7. Respond to feedback with patience, understanding and firmness: Because your DEI program may challenge existing norms or preconceived notions, it may create some discomfort or even elicit a visceral reaction from some employees. Handle this by enabling a listening environment where facilitated conversations can take place in an intentional, respectful and constructive way. Help your participants understand that change can be hard, but it is essential to cultivating a healthy and productive work environment.
As you move ahead, it’s important to keep your aspirations high, but your expectations real. That means finding a reasonable and practical starting point for implementing a DEI program that reflects your organization as it really is, not as you may want it to be. Remember that DEI is a journey. Don’t let the resistance you face along the way deter you from where you really want to go — toward a more diverse, equitable and inclusive work environment that creates a brighter future for everyone involved.
A Heads-Up For Employers: EEOC Increases Enforcement Activities
Companies and organizations that may have relaxed their compliance with federal employment and discrimination laws during the pandemic take note: the U.S. Equal Employment Opportunity Commission has been ramping up its enforcement activities.
That’s according to the newly released annual analysis of the government agency’s actions by the Seyfarth law firm. It found a recent spike in lawsuits and a surge in the monetary benefits that were recovered—a record $535.4 million—on behalf of alleged discrimination victims.
“When the final figures are released for FY 2021, we anticipate there will be a similar eye-popping dollar amount of recoveries,” the report predicted. Seyfarth partner and analysis co-author Christopher J. DeGroff warned that, “No matter how one slices the numbers, there are clear indicators that the EEOC’s litigation machinery is rumbling back to life.’’
According to the Commission’s website, “Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.”
United States: EEOC Updates Religious Accommodation And Vaccine Mandate Guidance
The EEOC has updated its technical guidance and answers in a document entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The updated guidance adds six religious accommodation-based questions and answers in a new Section L (Vaccinations - Title VII and Religious Objections to COVID-19 Vaccine Mandates). The updated guidance does not necessarily break new ground in this area; instead, it mostly reinforces several preexisting concepts, including (i) how employers should analyze the religious nature and sincerity of an employee's belief; (ii) what might constitute "undue hardship"; and (iii) the need for employers to analyze each accommodation request on a case-by-case basis. We break down the updated guidance further below.
Employees need not use "magic words" to request an accommodation.
This is nothing new under applicable accommodation law, including as to religious and disability-based accommodations. As part of this, the guidance flags a scenario where an employee may note to the employer a religious conflict with "getting a particular vaccine" and the employee's "wish to wait until an alternative version or specific brand of COVID-19 vaccine is available." In the case, the employer should treat that as a request for an accommodation and proceed accordingly. This guidance reaffirms that employers should consider affirmatively creating an accommodation process by which employees are notified of the existence of the employer's accommodation policy and how to use the exemption request process, including to whom employees should direct requests, by when, and what information to include. Designing an accommodation process for religious (and disability) vaccine exemption requests and communicating this process to employees will help stave off any claim that an employer never responded to an employee's exemption request.
Employers should analyze certain factors when considering the sincerity or religious nature of a belief.
The updated guidance, for the most part, tracks the guidance the EEOC set forth in Section 12 of its Compliance Manual on Religious Discrimination, which it last updated in January 2021. More specifically, the EEOC confirms that:
Employers may reject an accommodation request where certain safety concerns exist.
- Employers should generally "assume" that a request is based on a sincerely held religious belief, unless it has an "objective basis" to question the "religious nature or the sincerity of a particular belief," wherein the employer may make a "limited factual inquiry and [seek] additional supporting information."
- Religion includes "nontraditional religious beliefs," but does not protect "social, political, or economic views or personal preferences," or "nonreligious concerns about the possible effects of the vaccine."
- Sincerity is "largely a matter of individual credibility," and in analyzing an employee's credibility, employers may, per the EEOC, consider - either alone or in combination (although no one factor is determinative) - factors such as:
- whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance). However, in analyzing this factor, employers should: (i) note that an employee may sincerely hold a religious belief even if they have changed their beliefs or degree of adherence to their beliefs over time; and (ii) not assume a belief is insincere "simply because some of the employee's practices deviate from the commonly followed tenets of the employee's religion, or because the employee adheres to some common practices but not others."
- whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons;
- whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
- whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
Although the EEOC encourages employers to "thoroughly consider all possible reasonable accommodations, including telework and reassignment," it recognizes that an employer need not provide an accommodation, despite the existence of a sincerely held religious belief, where an "undue hardship" exists as to its operations. Here the EEOC confirmed the application of the Supreme Court's "de minimis" standard - that is, undue hardship may exist where employers must bear more than a "de minimis" or minimal cost to accommodate the religious belief. The EEOC further noted that:
The need for, and use of, religious-based accommodations may change over time.
- "Costs to be considered [as part of the undue hardship analysis] include not only direct monetary costs but also the burden on the conduct of the employer's business - including, in this instance, the risk of the spread of COVID-19 to other employees or to the public," and referenced cases where such accommodation "would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee's share of potentially hazardous or burdensome work" (emphasis added). It again directed readers back to its Compliance Manual on this issue.
- Employers should make this undue hardship assessment "by considering the particular facts of each situation and will need to demonstrate how much cost or disruption the employee's proposed accommodation would involve." Relevant pandemic-related factors include:
- whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals); and
- the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).
- The EEOC also noted that in this safety context, employers could find themselves in a situation where they grant accommodations to some, but not others, despite the similar sincerely held religious belief. Again, the EEOC stated, the existence of undue hardship "depends on its specific factual context," and it provided additional factors to consider: "the type of workplace, the nature of the employee's duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation." But the EEOC also noted that a "mere assumption that many more employees might seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship, [though] the employer may take into account the cumulative cost or burden of granting accommodations to other employees."
Just as employees' beliefs may change over time and result in a new accommodation request, so too may an employer reverse course to revoke a previously-provided accommodation to an employee no longer utilizing the accommodation for religious purposes or where that accommodation "subsequently poses an undue hardship on the employer's operations due to changed circumstances." In this latter case, the EEOC encourages employers to discuss the potential accommodation revocation with the employee and explore any "alternative accommodations that would not impose an undue hardship."
Properly understanding the considerations relevant to COVID-19 vaccine-related accommodations is more important than ever. Employers are well-advised to contact their counsel when designing and implementing their vaccine-related accommodation policies and when analyzing specific employee accommodation requests.
Staffing agencies caution against self-learning algorithms due to discrimination potential
Employment agencies are avoiding the use of self-learning algorithms as much as possible to match employers with employees. They want to avoid potential adverse effects, such as discrimination. This initiative began with Randstad, ManpowerGroup Netherlands, and YoungCapital.
The staffing agencies say they actively choose not to use self-learning algorithms during the selection process. The use of these algorithms can lead to the systematic exclusion of certain demographics by age, postal code, or other factors, even without the staffing agency realizing it.
The companies are also cautious about predictive algorithms. These are the algorithms used by the Tax and Customs Administration that went awry during the recent childcare benefits scandal. The prominent temporary employment agencies want to retain control over the selection process instead of leaving it to technology.
"With self-learning algorithms, even the creators can't discern what processes lead to the choices," explains Peter Pernet of YoungCapital. "Therefore, we cannot work with a self-learning algorithm, and the selection of candidates will lie in the hands of our recruiters." Randstad Netherlands is also aware of their company's social impact. That is why discriminating factors such as age, nationality, and postal code are not entered into the system, says Labor Market Director Marjolein ten Hoonte. Exactly the same thing happened at ManpowerGroup Nederland, which removed privacy-sensitive data from the system.
Erik Janse, responsible for digital developments at ManpowerGroup, noticed that there was too much privacy-sensitive information in the systems. "That's where it often goes wrong with the police and the tax authorities; they enter a lot of private data; which algorithms have access to." ManpowerGroup now only uses data that does not encourage discrimination.
Janse emphasizes a big difference between employment agency platforms and other 'supply and demand platforms' such as Bol.com and Booking.com. "An employment agency deals with people and not hotel rooms, so the technology has to be used differently, which is why there are always consultants involved in the selection process." Together with several universities, Randstad regularly tests the existing algorithms against a code of ethics and believes that it is always essential to have people watching.
EEOC Files First COVID-19-Related Suit After Employer Rejects Remote Work Request
Along with a new wave of post-COVID-19 litigation surfacing across the country, the Equal Employment Opportunity Commission (EEOC) has filed its first lawsuit against an employer for allegedly failing to accommodate and unlawfully terminating a disabled employee who had asked to work remotely because of the pandemic.
Ronisha Moncrief was a health, safety, and environmental (HSE) quality manager for ISS Facility Services, which provides office maintenance and management help. She worked at a pharmaceutical manufacturing facility in Newton County, Georgia.
In early March 2020, Moncrief was diagnosed with obstructive lung disease. Consequently, she requested a reasonable accommodation under the Americans with Disabilities Act (ADA), which included working from home and taking frequent breaks from the job. Meanwhile, during the COVID-19 pandemic, ISS modified the work schedule at her facility so all employees could work from home four days a week and rotate to be in-person at the site on the other day.
In or around June 2020, however, ISS began requiring staffers to return to the facility five days a week. In response, Moncrief again asked to work from home two days a week and take frequent rest breaks. At the time, she allegedly told the employer she required the accommodation because of the severe pulmonary disease diagnosis, which put her at high risk for contracting COVID-19.
The EEOC claimed Moncrief’s job required her to have close contact with many employees, including sharing a desk with coworkers. The agency also alleged she could perform all the essential job functions with the requested accommodation.
According to the complaint, ISS ultimately denied Moncrief’s accommodation request while permitting other managers with her same title to work from home. Approximately two months later, the employer terminated her over alleged performance issues. She claimed she hadn’t been given notice of the issues before the discharge and disputed whether they were the true reason for her separation.
On September 7, 2021, the EEOC sued ISS in the U.S. District Court for the Northern District of Georgia, alleging violations of the ADA. The Act requires employers with 15 or more employees to provide a reasonable accommodation to bona fide disabled employees, so long as it wouldn’t create an undue hardship on the business operations.
The EEOC claimed ISS discriminated against Moncrief in violation of the ADA by denying her request for a reasonable accommodation and then terminating her because of her disability and in retaliation for engaging in protected activity. The employer has yet to respond to the complaint, and the suit remains pending in Georgia federal court. EEOC v. ISS Facility Services, Inc.
What Case Means for Employers
All industries are dealing with remote-work accommodation requests. Therefore, you should pay attention to Moncrief’s case and be prepared for many more such lawsuits to appear nationwide.
Employers are operating in unprecedented times because of the pandemic, and the case law is still unsettled regarding your obligations to honor telework requests triggered by COVID-19. Consequently, you should carefully evaluate any virus-related accommodation requests to determine what is reasonable. Before denying a request, you should:
EEOC’s Guidance Can Help
- Have a well-documented interactive process to assess the potential disability accommodation;
- Avoid snap decisions about telework requests; and
- Use appropriate judgment under the law to determine what constitutes an undue hardship.
The EEOC has provided COVID-19 guidance that courts are likely to consider strongly when evaluating any failure-to-accommodate claims related to the ongoing pandemic:
Less expensive solutions. You should first consider what low-cost solutions may help to prevent workplace exposure to COVID-19, including but not limited to using plexiglass and other barriers between staff, limiting direct interaction between employees and/or customers, requiring face masks and other enhanced personal protective equipment (PPE), and designating one-way aisles.
Temporary assistance. You should next look at whether marginal job duties can be restructured temporarily or the employee moved to an alternative position for a while (with the same terms and conditions of employment). You also could consider modifying the individual’s work schedule or location to reduce the likelihood of exposure to others in the workplace.
Permissible questions. You may ask questions to (1) confirm the employee has a disability, (2) inquire how the requested accommodation would assist her in performing the essential job duties, (3) explore alternative solutions that may work, and (4) obtain appropriate medical documentation in support of the request.
Undue hardship. When assessing whether a requested accommodation would cause an undue hardship for your business, you may consider whether current circumstances brought about by the pandemic create “significant difficulty” in providing for certain solutions. For example, it may be harder to (1) acquire certain items needed to accommodate teleworking employees or (2) hire temporary workers to make up some of the work for those who have been reassigned.
Major expenses. You also may consider whether the requested accommodation poses a significant expense compared to your overall budget and resources, particularly in light of any loss of income or reduced discretionary funds caused by the pandemic.
Final Note About Long COVID
As of September 9, 2021, the EEOC has noted individuals with “long COVID” may qualify as disabled under the ADA. According to the U.S. Department of Health and Human Services (HHS), long COVID refers to people who have new or ongoing virus symptoms for weeks or months after they were infected with the virus.
Long COVID’s symptoms can include (but aren’t limited to) tiredness or fatigue, difficulty concentrating, shortness of breath, headache, dizziness on standing, chest pain, cough, muscle pain, depression, or anxiety. If the condition substantially limits one or more major life activities, it can therefore qualify as a disability under the ADA.
ANALYSIS: RTO, Covid Issues to Drive Ramp-Up in ADA Litigation
The Covid-19 pandemic has created a host of challenges for employers. As more employees return to the office in 2022, employers will face tricky compliance questions—and, most likely, increased litigation—under one body of law in particular: the Americans with Disabilities Act (ADA) and its state and local counterparts.
Litigation and Charge Trends
As employers call employees back to the office, either full-time or on a hybrid schedule, three issues will likely drive an uptick in ADA litigation:
This anticipated rise in ADA litigation follows a period of fluctuations in the number of ADA cases filed in federal court, according to an analysis of Bloomberg Law Dockets. While the number of cases rose from 2016–2018, they declined in 2019 and 2020. But they are already on the rise in 2021, with cases filed over the first three quarters of this year exceeding the number filed in the same time period of the prior year.
- requests for telework as a reasonable accommodation;
- long-haul Covid-19; and
- vaccine mandates and exemption policies.
During the past five years, more ADA cases have been filed in the fourth quarter of each successive year. If that trend continues, 2021 will close with more cases filed this year than last. And conditions are favorable for ADA cases to surge in 2022.
Meanwhile, charges that include ADA claims have made up an increasing percentage of all charges filed with the EEOC over the 2016-2020 time period (although the total number of charges that include ADA claims decreased from 2016-2019).
Requests for Telework Accommodations Will Increase
Employers may be in a tough spot in 2022: Can they argue that working in the office is really an essential job function, after 18-plus months of remote work?
Post-pandemic, courts may be more willing to view remote work as a reasonable accommodation than they had been in the past. Before Covid-19, there was some litigation over whether telework is a reasonable accommodation for employees with ADA-covered disabilities. Employers argued that employees’ physical presence at the worksite was an essential job function, and courts were pretty receptive. But the coronavirus pandemic has changed how and where many Americans work. Now, if employers refuse such requests, disabled employees will likely take those cases to court, pointing to ADA protection in support of their requests to continue working from home. If successful, other disabled employees will take their claims to court as well. And of course, employers and employees will continue to disagree over the reasonableness of other types of accommodations, like unpaid leave, flexible work schedules, and alternative worksites too, spurring additional ADA cases.
According to Equal Employment Opportunity Commission (EEOC) guidance, employers that allowed teleworking during the pandemic do not have to continue allowing it once worksites reopen. But that is not a free pass for employers to deny accommodation requests without engaging in the interactive process. Indeed, the EEOC recently filed its first Covid-19 telework accommodations lawsuit, involving an employee with a heart condition who was allegedly terminated after her request to continue working from home was denied. It is unlikely to be the EEOC’s last.
A number of other ADA cases involving requests to telework are already pending. For example, a teacher in a high-risk category for contracting Covid-19 sued her school district after it allegedly failed to consider her request to work from home, a manager with prostate cancer sued for discrimination, failure to accommodate, and retaliation after his requests for reasonable accommodation, which included remote work, were denied, and a professor with lung and heart conditions filed a charge with the EEOC (a prerequisite to litigation) after her request for continued telework was denied.
There are also telework lawsuits pending under state and local disability laws, such as a case filed by an in-house lawyer with underlying health conditions who claimed he was terminated after refusing to return to the office, and a case brought by an employee with COPD whose employer allegedly terminated her without addressing her requests for accommodation, which included telework.
Long-Haul Covid-19 Is a New Disability
Over the coming year, courts will continue to flesh out the contours of actual and perceived disability claims based on Covid-19.
Thanks to the pandemic, there is a brand-new type of disability. The Department of Justice and the Department of Health and Human Services, as well as the EEOC, have stated that “long-haul” Covid-19 may qualify as a disability. Long-haul Covid-19 involves symptoms that can last for weeks or even months following infection. Further EEOC guidance is forthcoming, but litigation alleging discrimination and failure to accommodate long-haul Covid-19 has already been filed.
Courts are also wrestling with whether Covid-19 itself can even be considered a disability. For example, one court denied an employer’s motion to dismiss a claim that the employer had “regarded” the employee as disabled when it terminated her following a positive Covid-19 test. That case recently settled, but it is not the only case that has been filed advancing that theory. If successful, it would expand the “regarded as” prong of the ADA. And another court recently rejected an employer’s argument that Covid-19 was simply not covered by the ADA.
Vaccine Mandates May Bring Class Actions
In 2022, plaintiffs’ attorneys will continue to advance creative theories challenging vaccine mandates, exemption policies, and exemption request decisions, driving up the number of ADA cases.
Court rulings to date confirm that employers can lawfully mandate vaccines, as long as they provide exemptions for approved reasons of religion and disability. Future vaccine mandate litigation will likely challenge the Occupational Safety and Health Administration’s authority to issue the Emergency Temporary Standard, or its interplay with state and local laws prohibiting mandates.
There are already pending disputes over employer exemption policies and exemption request decisions. Such cases will continue to be filed as mandates take effect. While disability cases often involve single plaintiffs, mandates and exemption policies apply to the broader workforce, making employers more vulnerable to class claims, like the case pending over one company’s policy of granting unpaid leave as an accommodation. Blanket policies denying future telework, for example, could also expose employers to class liability.
There may be other kinds of ADA claims related to vaccines too. If an unsuccessful job applicant had put their vaccine status on their resume, an employer may face a failure to hire claim. Employers should also be careful about which employees they refuse to bring back to the worksite. For example, the EEOC has filed a lawsuitagainst an employer who allegedly would not let two disabled employees come to work until they were vaccinated (before vaccines were available).
In It For The Long Haul: Employer Obligations To Employees With Long COVID Symptoms
Some people continue experiencing COVID-19 symptoms for weeks or months after first developing COVID-19. The Centers for Disease Control and Prevention have defined “long COVID” as “new or ongoing symptoms that can last weeks or months after first being infected with the virus that causes COVID-19.” With the rise of long COVID, the U.S. Department of Health and Human Services (“HHS”) provided guidance on Long COVID and how it qualifies as a disability under the Americans with Disabilities Act (“ADA”).
Long COVID symptoms include, but are not limited to, tiredness, fatigue, difficulty thinking or concentrating, shortness of breath, headache, dizziness upon standing, heart palpitations, chest pain, cough, joint or muscle pain, depression or anxiety, fever, and loss of taste or smell. In its guidance, the HHS explained that under Title II and III of the ADA, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Patient Protection and Affordable Care Act, long COVID can be a disability if it substantially limits one or more major life activities. Major life activities include a wide range of actions including caring for oneself, performing manual tasks, walking, standing, breathing, communicating, and working.
Employees whose long COVID qualifies as a disability are entitled to the same protections from discrimination as any other person with a disability under the ADA. Accordingly, all employers should ensure they have established procedures to fulfill their legal obligations with respect to employees experiencing the symptoms of long COVID. When responding to reasonable accommodation requests under the ADA, employers must consider them on an individualized case-by-case basis. Employers should not assume that there is no reasonable accommodation that would permit the employee to continue to perform the essential functions of the job. Employers must engage in an interactive dialogue with employees who might need a reasonable accommodation. Although employers are generally not required to provide the specific accommodation requested if a suitable alternative accommodation exists, depending on the employee’s job and the workplace, employers should consider all the options.
Combating Autistic Discrimination in the Workplace
As an autistic person growing up, I quickly learned that discrimination was going to be a part of life that I would have to find ways to cope with. Upon leaving education I was fired from a range of jobs for being “too slow” and lacking social interaction.
A survey conducted by the Office for National Statistics (ONS) showed that only 22% of adults with autism spectrum disorder (ASD) are in employment, compared with 52% of disabled adults and 81% of non-disabled adults. I was like so many other autistic adults—desperate to get on at work but held back by prejudice and a lack of understanding by employers.
I lacked the confidence to stand up for my rights and came to expect hostility in the corporate world as the norm. This led to poor mental health and severe anxiety around anything related to employment.
Now, 20 years after leaving school, I finally have a job I love and the confidence to self-advocate. Attitudes to autism spectrum disorders have radically improved but there’s a long way to go.
How have things improved?
I remember the blank stare at a college interview when I mentioned that I had high-functioning autism. “What’s that?” asked the tutor, who then told me that with my difficulties with social interaction I wouldn’t be the right fit for the course.
In 2021, these incidences seem far less frequent. People are more willing to listen, and there is a broader level of understanding. More positive depictions of autism spectrum disorders on the TV and in magazines play an important role in leading change. More research related to autism has shown how the disorder presents in different genders, and how it affects people as they age, which has all helped to address how society views autism.
Employers are increasingly seeing the benefits of hiring people diagnosed with autism. The business world has realized that the autistic adult has a wealth of desirable qualities that make us suitable for employment. There is better access to reasonable adjustments that can help us, and the law now recognizes autism as being on an equal par with physical and medical conditions when it comes to accessing support. Things are improving, but discrimination against autistic people still happens frequently.
Why do autistic individuals experience discrimination?
Discrimination can happen to anyone who is different, and often for autistic people it can be particularly hard to address because those differences are not as obvious as those with a physical disability.
Lucy Smith, CEO of Inclusive Change, works with autistic adults in the workplace. She has found that many have faced prejudice at work after asking for reasonable adjustments, such as a later start time, a quiet area or a permanent desk in a “hot desk” office.
“The fact that autism is a hidden disability can mean that they expect an autistic employee should meet the standards and expectations of their workplace ‘just like everyone else’. I have seen those people often left out of meetings that are relevant to their job, being told that ‘if we do this for you, we have to do this for everyone’,” Lucy explained.
Sometimes this treatment can be a result of unconscious bias, based on assumptions that a person may think an autistic person will like or dislike. They may believe that someone with ASD won’t enjoy certain activities, or won’t care what other people think. They don’t realize that people on the spectrum are all different. While it may feel upsetting, they may not recognize their behavior is discriminative if they have never had their beliefs challenged. Autistic people may be overlooked for promotion or not given training opportunities for the same reasons.
“Autistic adults can and do make incredible leaders with the right support in place,” says Lucy. “I am positive that the next generation of autistic children will face less discrimination as a result of the work we are doing right now to change perceptions and raise awareness of autistic inclusion and diversity.”
Discrimination starts early
I remember being made to sit out a netball game at school because I wouldn’t fasten the top button of my gym shirt. The collar literally made me feel like I was being strangled. I had to sit at the side while the other girls played my favorite sport. Playing netball was one of the few ways for me to feel included in the playground, but on this occasion, I was excluded. Already struggling with social situations, I was unable to join in conversations with the other girls. I felt more isolated every time this happened, and my self-esteem plummeted.
Lucy explains how one small incident can snowball, worsening developmental delays. “Autistic children may struggle with organization and homework deadlines so a blanket detention policy without making adjustments for an individual could amount to disability discrimination.
“At school, autistic children are more at risk of being bullied. Being different is often a reason cited for being bullied and, being autistic, you are likely to be different. That may mean that a child may get into trouble for standing up for themselves. Autistic children may also not understand rules or find sticking to them challenging; this can lead to consequences or exclusions.”
Gaps in support
While there is more support for disabilities and differences including autism, there are still gaps in support. Having a policy in place is only effective when everyone sticks to it. Daniel Jones, an autistic speaker and CEO of The Aspie World, shares one example of this.
“One student I worked with had a support plan that said if they struggled they could leave class and go and sit outside the headteacher’s office to calm down. One day, the student felt like they needed to do this, but the teacher wouldn’t let them. They were told they had to do as they were told and sit back down in the classroom. The student ignored the teacher as they knew that their support plan permitted them to leave the room. The teacher followed them and cornered them on a balcony, telling them they have to go back to class and do as they are told.”
People with autism have a lot to offer the workplace, but often we can’t reach our full potential when employers are unwilling to make reasonable adjustments.
Daniel was repeatedly harassed after his requests for reasonable adjustments were interpreted as “dictating his work environment”. He says: “I was told to stop dictating my work environment. They then placed me in open plan areas of the office with strip lights over my head, surrounded by people, with many distractions, making me completely unable to do my job, which then became something else to get told off for.”
Rachel Morgan-Trimmer is head of training at neurodiversity consultancy Inclusively Tech. She adds: “Creating an autism-friendly workplace isn’t the expensive, difficult process that some employers seem to think it is. In fact, I would argue that the reasonable adjustments required by law actually come second to people’s attitudes. Wanting to be inclusive, understanding that autistic people aren’t really that different from everyone else, and enabling everyone to work to their strengths is where we need to start from to create an inclusive workplace. Having ‘autism awareness’ training just to tick a box won’t do any good if senior management don’t truly want to be inclusive.”
What can you do?
We can’t prevent discrimination from happening but we can equip children with the tools they need to challenge it. The best thing you can do as a parent is to help to prepare your child for the world of employment and encourage them to advocate for themselves. Help them to know about their rights in the workplace, and what the law says they are entitled to expect from a good employer.
It’s good to make children aware of some of the issues they are likely to face and come up with solutions as a team. Teach your child what behaviors to watch out for, and what is unacceptable, so that they can identify if they are being singled out.
Helping your child to see autism as a difference, rather than a deficit, can also really help to raise their self-esteem. By teaching them to advocate for themselves as adults they will feel more confident to speak up against discrimination.
There are laws to protect against discrimination, so if you feel that your child has been victimized then you could challenge it. Think about ways to resolve the situation, and frame it in a way that will lead to a solution. Lucy concludes: “This is easier with the support of a calm and supportive friend, family member or professional. Write down what the discrimination has been and if it is due to adjustments which need to be made.”
Why We Need To Talk About Age And Aging In The Workplace
No matter what dimension of diversity is discussed, there are layers of complexity. Ageism is no exception. Unfortunately, the complexities around age and aging in the workplace are not being addressed, resulting in continued mismanagement of talent, decreasing employee belonging and discrimination.
Evidence of workplace ageism is all around. Media habitually assigns individual attributes to specific groups of a certain age. In the workplace, it’s evident by the absence of age in implicit bias training–or anywhere in the DEI strategy–as well as the lack of older candidates recruited.
Identifying the many ways age bias and discrimination show up in the workplace creates a much–needed awareness across the age spectrum. With understanding, individuals become more mindful about their actions and the actions of others. More importantly, they learn how to effectively respond to bias when it shows up, which, over time, creates necessary change.
Although older workers typically face the most egregious age bias and discrimination, whenever age is used to diminish the competency and capability of another, ageism is in action. Consider younger, early-career employees who either can’t get a job regardless of their education or demonstrated potential. Or they are exploited with low pay and the expectation of longer working hours and 24/7 availability in exchange for a free lunch on Fridays.
We’re All Biased
Everyone has biases, prejudices either in favor of or against a thing, person or group. But biases are often based on stereotypes or other commonly accepted beliefs rather than actual knowledge.
If there is a conscious preference for (or aversion to) a person or group of people, that’s explicit bias. However, often the negative attitudes are without conscious knowledge, in which case it would be implicit.
According to cognitive neuroscientists, we are conscious of only about five percent of our cognitive activity. That means that most of our decisions, actions, emotions and behavior depend on 95 percent of brain activity beyond our conscious awareness. These mental shortcuts can result in prejudgments that lead to rash decisions or discriminatory practices.
A fairly common workplace example of bias is when recruiters and hiring managers automatically dismiss older candidates. If it is intentional, based on any number of negative stereotypes related to age or ability, it’s explicit ageism. However, if they don’t realize the repeated behavior, it could be implicit.
Like any dimension of diversity, age is not a predictive indicator of talent and should never be a reason to exclude talent.
If recruiters and hiring managers dismiss candidates based on how old they think they are, they are ageist. If they dismiss them based on how they assume their minds or bodies function, they are ableist. They are ageist and ableist if they attribute capacity—or incapacity—to someone based on their age.
Implicit Age Bias in the Workplace
Implicit age bias is defined by leading gerontologist and researcher on age and aging, Becca Levy, as occurring when a culture’s ageist stereotypes are internalized, and become part of a sub-conscious framework of society.
In the workplace implicit age bias looks like this: a new sales software is being deployed, but older employees are not invited to attend the training because the decision-maker didn’t want to upset them with the change or thought it might be too hard for them to learn the new technology.
Implicit or explicit?
If the exclusion was based on the assumption that older people are reluctant to change or find learning new technology challenging, it could be implicit. But if it was knowingly done based on age-related judgments, then the decision-maker could have made an explicit, illegal decision.
To complicate matters further, because implicit bias is often internalized, it can become self-directed. Using the above example, if the older employee accepted the exclusion from training because it saved them from the hardship of change, that would be implicit, self-directed age bias.
In that example, the older employee absorbed the stereotype woven into the subconscious framework of society that older workers are resistant to change. The reality is that people across the age spectrum can be resistant to change.
Being aware of biases is very important. More importantly, managing bias requires being open to critical self-evaluation to determine how these biases may be impeding relationships with others.
Moreover, inclusive hiring practices result in plenty of dedicated talent–the very thing companies claim they lack. Proactively creating a diverse, multigenerational workplace will broaden the talent pool and retention rates.
Unless organizations have the conversation with employees, age-related biases will continue to go unchecked. Change will never happen if nobody is talking about it.
Want to improve your trans inclusion? Look to allyship, accountability
In a far-ranging recent webinar hosted by Mogul and Accenture—entitled Growth Workshop: Creating a Trans-Inclusive World—Beck Bailey, managing director of inclusion and diversity at Accenture, tackled that issue. It’s one that has been making headlines in recent weeks, as controversy over comedian Dave Chappelle’s transphobic comments reached the workplace: Hundreds of Netflix employees walked off the job last week to protest the platform’s refusal to pull the problematic Chappelle special and have since pressed to meet personally with the comedian.
While employers clearly have a ways to go in terms of providing trans-inclusive workplaces, Bailey, who also spent nearly seven years with national LGBTQ organization Human Rights Campaign, did focus on the positive.
For example, he noted, more than 400 employers in the U.S. have signed on to support the Equality Act, legislation (already passed by the House) that would prohibit discrimination in employment and other sectors based on sexual orientation and gender identity. Despite years of advocacy, both categories have yet to be incorporated into federal nondiscrimination laws, though there is a patchwork of state laws that outlaw LGBTQ discrimination.
“Why shouldn’t those employees have equal rights and protections that we have for race and ethnicity, or for gender or disabilities?” Bailey said. Two years ago, the measure was reintroduced to Congress along with an organized push by 167 employers, a number that has since more than doubled. “Here, we have all of these leading employers saying, ‘We support that legislation.’ ”
Bailey adds that many of those same employers agree that, “at least within the walls of our business, we’re going to be inclusive, and we’re going to have policies that support the larger LGBTQ community, and trans and non-binary people in particular.”
Yet, there’s more to be done beyond making pledges. He points out that building an inclusive, equitable workplace is heavily dependent on each manager and team. For example, if those two entities don’t share the same level of understanding of the issues involved, it likely would pose a major roadblock to success.
“Maybe [a manager or team members have] never met a transgender person before. So, this is all new to them,” he said.
Bailey explained that employers must think about continually messaging their support, so if an employee does come out in the workplace, they can “swoop in” and support that team “at that moment … to learn more, to do better, to be better around that individual.”
To help HR and employers with this effort, Bailey suggested connecting with organizations like HRC and other advocates for equality in the workplace. Local LGBTQ organizations can also often offer trans-inclusive toolkits, guidelines and effective sample workplace policies.
Another major opportunity for HR to move the needle is through allyship programs, focusing on how colleagues and leaders can best support and develop trans people within the workplace.
“Allyship comes in many, many forms,” he said. “And the best allies understand that there is always more to learn—especially [about] how people with multiple, marginalized identities have different hurdles than people with a singular one.”
Bailey said the best allies are “visible,” whether that means by wearing a trans-supportive badge or even just including preferred pronouns in their email signature.
“So often, marginalized people are doing all that labor for themselves. It’s often perceived as self-serving,” he said. “That’s where it helps to have allies. It helps to have cis-gender people saying, ‘We should have trans benefits.’ ”
Bailey also highlighted the importance of holding managers accountable in pursuit of inclusion and diversity and their impact on culture.
“It should be part of how employers measure manager performance,” Baily said. “If you don’t measure them that way, what incentive do they have to spend time thinking about it, and investing the time in their own education?”
California Passes the “Silenced No More Act,” Further Limiting the Use of Nondisclosure Agreements
On October 7, 2021, Governor Newsom signed the Silenced No More Act (SB-331), which expands existing restrictions on the use of non-disclosure agreements (NDAs) in settlement agreements based on claims of workplace discrimination, harassment, or retaliation.
A link to SB-331 can be found here. SB-331 builds upon previous legislation, SB-820, also known as the STAND (Stand Together Against Non-Disclosure) Act, which California passed in response to the #MeToo movement in 2018. SB-820 prohibited NDAs that prevented the disclosure of factual information related to claims of sexual assault or harassment, or acts of workplace discrimination, harassment, or related retaliation based on sex.
Under SB-331, NDAs are now prohibited for all alleged claims of workplace harassment, discrimination, or retaliation, including those based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation or veteran or military status. The new law will take effect on January 1, 2022.
SB-331 makes several other key changes as well:
SB-331 also offers several clarifications:
- Right to Consult an Attorney: An employer offering a current or former employee a settlement agreement related to the employee’s employment shall notify the employee that the employee has a right to consult an attorney.
- Five-Day Period to Consider Agreement: An employer must provide the employee five business days to consider the agreement, though an employee may sign the agreement prior to the end of this time period, as long as the employee’s decision to accept such shortening of time is “knowing and voluntary and is not induced by the employer through fraud, misrepresentation, or a threat to withdraw or alter the offer prior to the expiration of the reasonable time period, or by providing different terms to employees who sign such an agreement prior to the expiration of such time period.”
- Non-Disparagement Provisions: Employers may continue to use non-disparagement provisions as a condition of employment or in settlement agreements. However, a non-disparagement provision that restricts an employee’s ability to disclose information related to conditions in the workplace must include the following language: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”
- Exemptions: SB-331 does not apply where a “negotiated settlement agreement” that resolves an underlying claim that has been filed by an employee in court, before an administrative agency, in an alternative dispute resolution forum, or through an employer’s internal complaint process, provided that “the employee is given notice and opportunity to retain an attorney or is represented by an attorney.” Thus, there are still instances where employers can utilize NDAs in settlement agreements.
Employers should update their employment settlement agreement forms to ensure compliance with SB-331. Any provision in a settlement agreement entered into on or after January 1, 2022, that does not conform to SB-331 is void as a matter of law and against public policy.
- Settlement agreements may include “a general release or waiver of all claims”;
- An employer is not prohibited from protecting its “trade secrets, proprietary information, or confidential information that does not involve unlawful acts in the workplace”;
- Settlement agreements may require that the amount paid in severance be confidential.
Is Unconscious Bias Present in All Organizations?
The majority of modern-day employers have equality and diversity policies in place and, although the application of these – and their importance – differs from organisation to organisation, the general principles remain.
Whilst many people will consider that they do not discriminate or show bias at work, everyone will all have some level of unconscious bias which, by its very nature, they are not aware of.
What is unconscious bias?
This takes many forms but essentially is where a perpetrator favors an individual or group – often in recruitment or promotion decisions – but is unaware they are doing so.
Factors contributing to unconscious bias include stereotypes, assumptions, and historic practices. This could be something as little as having a picture in their mind when advertising for a role, not because those characteristics imagined are desired, but rather because this image reflects the characteristics of existing employees in that role or department.
If the image is an able-bodied man, for example, then any candidates not meeting that will be at a disadvantage from the outset as they will have to change the decision markers’ image as to what the ‘ideal’ candidate looks like.
What steps can employers take to minimize the impact of unconscious bias?
Different individuals and groups have been shown to exhibit unconscious bias in a variety of ways. The first step to combat this would be to provide management training to identify the potential for bias. Then, in those situations – and to minimize the risk of unconscious bias ultimately affecting business decisions in an unfair way – employers should ideally engage a diverse decision-making panel.
This can include having two or more individuals involved in scoring interviews for new candidates. Those sitting on the panel should also have varied backgrounds such as different genders, races, age brackets, and so on. The idea being that any unconscious bias on behalf of each of those on the panel will help cancel each other out, and therefore lead to a fairer, final decision.
Put a monitoring system in place
Keeping track of decisions and diversity information can help to identify potential trends. This can also help employers in identifying areas to focus on, to minimize the risk of bias being a contributory factor to these patterns.
Maintaining a record
Rather than asking decision makers to simply make a call based on issues – such as the most suitable candidate for promotion – break down the key factors that cover what the business wants the judgment to be based upon. Then, allow the decision makers to assign scores to these specific key attributes and skills, and ask them to provide reasons as to how they have determined their scores.
By making them think about why they feel a candidate performed in the way they perceived, this will help them to identify potential for unconscious bias. For example, was their opinion as to the candidate’s attitude or enthusiasm affected by the existence of an accent? Or did they not feel they would ‘fit in’? If so, why? And is it simply because they have different attributes to existing team members?
By maintaining contemporaneous records, this will assist employers should they need to respond to any allegations of bias or discrimination. It will also help to evidence that objective criteria were used, and they took all reasonable steps to ensure a fair and unbiased decision-making process.
White House Releases First-Ever “National Strategy On Gender Equity And Equality”
As part of President Biden’s March 8, 2021 Executive Order 14020 establishing the White House Gender Policy Council (see here), on October 22, 2021 the White House released the first-ever U.S. Government National Strategy on Gender Equity and Equality.
The Strategy has three main sections. Section One establishes guiding principles undergirding the strategy to advance gender equity and equality. Section Two outlines the following ten interconnected priorities: (1) economic security; (2) gender-based violence; (3) health; (4) education; (5) justice and immigration; (6) human rights and equality under the law; (7) security and humanitarian relief; (8) climate change; (9) science and technology; and (10) democracy, participation, and leadership. Section Three elaborates on the whole-of-government effort that is required for implementation, ensuring that a focus on gender is mainstreamed across the work of the federal government.
Strategy On Improving Economic Security And Accelerating Economic Growth
The Strategy Paper’s “economic security” priority includes subsections on “Promoting Economic Competitiveness by Advancing Women’s Employment in Well-Paying Jobs” and “Addressing Persistent Gender Discrimination and Systemic Barriers to Full Workforce Participation.” Under the Strategy Paper, the White House will “ensure that women have the support they need to enter, stay, and advance in the labor force, and encourage their access to well-paying, good quality jobs,” “ensure that women have a free and fair choice to join a union and that domestic workers receive the legal benefits and protections they deserve,” and “seek increased pay for jobs that are disproportionately held by women by pursuing an increase in the minimum wage and the elimination of the tipped minimum wage and the subminimum wage for all workers, including those with disabilities.”
Furthermore, to close the gender wage gap in the U.S., the White House will “work to strengthen laws prohibiting wage discrimination on the basis of gender, race, and other characteristics, and . . . increase resources for enforcement,” “promote pay transparency, taking steps to increase analysis of pay gaps on the basis of gender, race, and other factors, and outline plans to eliminate these disparities,” “pursue policies to eliminate reliance on prior salary history in compensation decisions, which can perpetuate and compound the effects of prior discrimination,” and “support policies to prohibit discrimination against pregnant and parenting workers.” To eliminate harassment and other forms of workplace discrimination, the White House will support “increasing transparency and accountability by ending forced arbitration and mandatory nondisclosure agreements that prevent workers from pursuing their day in court and by strengthening prevention efforts to create a work environment where all workers can thrive.”
Section III (“Implementation”) requires each federal agency to establish at least three goals to advance the Strategy’s objectives, and detail the plans and resources needed to achieve their goals. Specifically, “agencies should identify, under the auspices of their three priority goals: (i) the gender gaps they aim to close; (ii) outcome measures; and (iii) budgetary, staff, and other needs to achieve targeted objectives.” To ensure effective implementation of the Strategy Paper, the White House will also “embark on a government-wide effort to strengthen data collection and analysis and close gender data gaps.”
The same day the Strategy Paper was released, noting the Commission’s contribution to the White House’s Strategy Paper and supporting its full implementation. EEOC Chair Charlotte A. Burrows stated:
The COVID-19 pandemic’s disparate impact on women generally and women of color in particular makes it more urgent than ever to ensure that gender is not a barrier to economic security and opportunities in the workplace. This strategy’s goals to promote pay equity, eliminate harassment and other forms of employment discrimination, and support the nation’s caregivers are all important EEOC priorities.
As previously noted (here), the EEOC’s litigation enforcement activity showed signs of recovering in fiscal year 2021 following the Commission’s down year in FY 2020 – forecasting a busy year in FY 2021 for the EEOC and employers. The EEOC’s public support for full implementation of the White House’s National Strategy on Gender Equity and Equality indicates that issues relating to gender equity may be priorities for the Commission in FY 2022.
EEOC Commissioner: Companies Must Mitigate the Use of AI for Employment Decisions
Artificial intelligence (AI) has wholly transformed the way employees are recruited, hired, trained, evaluated, and even fired. However, employers must find the right division of labor between AI and human resources personnel between using AI to improve human decision-making and delegating decision-making entirely to algorithms, said Keith Sonderling, commissioner for the U.S. Equal Employment Opportunity Commission (EEOC), on Oct 18 at the AI World virtual summit.
According to Sonderling, 83 percent of human resources leaders rely in some form on technology in employment decision-making, and 70 percent of talent recruiters say recruiting in the near future will become virtual.
This, he added, is not necessarily a bad thing. For example, AI has been used to screen resumes, write job descriptions, chat with applicants, and even conduct interviews. AI-driven technologies can make the workplace more open, fair, and inclusive by eliminating unlawful discrimination from employment decisions.
“When AI is carefully designed and properly used, it has the potential to advance diversity and inclusion in the workplace by mitigating the risks of unlawful discrimination,” Sonderling said.
However, AI can also amplify workplace bias if it is poorly designed or carelessly deployed. Using AI to make decisions ordinarily made by HR professionals, he added, can have significant legal ramifications, so employers should exercise caution in deciding when and if to hand such matters over to algorithms.
“There may be cases in which compliance with Federal anti-discrimination law requires human intervention,” Sonderling said. And this is frequently the case when it comes to Federally mandated workplace accommodations for employees, such as pregnant, disabled, and religious employees.
If an employer uses AI to review performance and track productivity, they should ensure that their AI system allows and accounts for necessary accommodations. Therefore, employers must develop and implement policies to handle nuanced employee situations regardless of their tools to make employment decisions.