JANUARY DIVERSITY, EQUITY, AND INCLUSION UPDATE
JANUARY DIVERSITY, EQUITY, AND INCLUSION UPDATE
Jan 3rd, 2022
Matt Glowacki, Diversity Equity & Inclusion Chair
Jefferson County HRMA & WI SHRM
What More Can We Ask About COVID-19? EEOC Chimes In on If It Is a Disability Under the ADA
For almost two years now, employers have been tackling the issues surrounding COVID-19. Not surprisingly most questions centered on COVID-19-specific leave, OSHA reporting requirements, and vaccines. Now, the EEOC has chimed in on something that employers may not have yet considered: When does an employee’s COVID-19 become a disability under the Americans with Disabilities Act?
Back to ADA Basics
As you know, under the ADA, an employer cannot discriminate against employees with disabilities. Additionally, if an employee with a disability requests a workplace accommodation, you may be required to provide a reasonable accommodation so that the employee is able to perform the essential duties of his or her job.
An employee has a disability if the employee has a physical or mental impairment that substantially limits one or more major life activities. Major life activities include things such as walking, standing, thinking, and other daily activities or bodily functions. Not all of the major life activities involve working. An employee is also considered disabled if the employer regards the employee as having such an impairment or the employee has a record of having such an impairment.
ADA disabilities range from intellectual disabilities to broken bones to diabetes and more, all depending on the circumstances of the impairment. The EEOC has now released guidance on when COVID-19 may become a disability under the ADA, e.g., when its effects substantially limit one or more major life activity of the employee.
The EEOC Guidance
The EEOC’s guidance was published on December 14, 2021. It starts by noting that whether an impairment is a disability is a fact-specific question, dependent on the physical and mental condition of the employee and his or her abilities and restrictions. For example, the guidance notes that a person who is infected with COVID-19 but is asymptomatic, or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks with no other consequences, will not have an actual disability within the meaning of the ADA. On the other hand, an employee who has symptoms for several weeks or months may be considered disabled, but it is a case-by-case inquiry.
The guidance then notes that COVID-19 is a “mental or physical impairment” because it is a physiological condition affecting at least one bodily system. Thus, the main question becomes whether an employee’s COVID-19 condition “substantially limits” at least one major life activity. The guidance provides a few notable examples of when an employee’s COVID-19 symptoms substantially limit a major life activity:
The guidance also provides examples of when an employee’s COVID-19 symptoms do not substantially limit a major life activity:
- An individual diagnosed with COVID-19 who experiences ongoing and intermittent headaches, dizziness, brain fog, and difficulty concentrating, which the employee’s doctor attributes to COVID-19, is disabled because the employee is substantially limited in the major life activities of brain function, concentrating, and/or thinking.
- An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other COVID-19-related effects that last (or are expected to last) for several months is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.
- An individual diagnosed with COVID-19 who experiences heart palpitations, chest pain, shortness of breath, and related effects due to COVID-19 that last (or are expected to last) for several months is substantially limited in cardiovascular function and circulatory function.
- An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities.
- An individual is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.
- An individual infected with COVID-19 but asymptomatic is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.
As always, when an employee discloses that she or he has a disability, analyze the specific circumstances and limitations to determine whether the employee’s condition substantially limits one or more major life activities. Generally, meeting this definition of “disability” is not challenging, so err on the side of caution and take each case seriously, considering what, if any, reasonable accommodations may enable the employee to do the essential functions of his or her job. Use the EEOC’s guidance in your analysis, and, as always, get the advice of your legal counsel.
EEOC: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
Technical Assistance Questions and Answers –
(ABBREVIEATED, PLEASE USE LINK TO SEE ENTIRE EEOC RULING)
- All EEOC materials related to COVID-19 are collected at www.eeoc.gov/coronavirus.
- The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries), Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older), and the Genetic Information Nondiscrimination Act. Note: Other federal laws, as well as state or local laws, may provide employees with additional protections.
- Title I of the ADA applies to private employers with 15 or more employees. It also applies to state and local government employers, employment agencies, and labor unions. All nondiscrimination standards under Title I of the ADA also apply to federal agencies under Section 501 of the Rehabilitation Act. Basic background information about the ADA and the Rehabilitation Act is available on EEOC's disability page.
- The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety. This includes evolving guidance found in the CDC publication, “Interim Public Health Recommendations for Fully Vaccinated People." Many common workplace inquiries about the COVID-19 pandemic are addressed in the CDC publication “General Business Frequently Asked Questions.”
- The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [PDF version]) ("Pandemic Preparedness"), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic. It has been updated as of March 19, 2020 to address examples and information regarding COVID-19; the new 2020 information appears in bold and is marked with an asterisk.
- On March 27, 2020 the EEOC provided a webinar ("3/27/20 Webinar") which was recorded and transcribed and is available at www.eeoc.gov/coronavirus. The World Health Organization (WHO) has declared COVID-19 to be an international pandemic. The EEOC pandemic publication includes a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the following may be useful:
Disability Accommodations in the Workplace: An HR and Legal Perspective
The HR Perspective
Cory Christmas, training manager at Baker Donelson, has worked in human resources for more than 15 years, and he still recalls his first role with managerial responsibilities and advice he received that he still uses today. Cory's director told him, "Cory, now that you are part of the management team, you'll have to be more careful about conversations in which you may become involved. I have one rule that I live by when it comes to workplace conversations." Cory opened his notepad, flipped to a clean page and prepared himself to record his director's advice: "Don't make comments on or ask questions of people about things they cannot change about themselves in five minutes. This will keep you out of the HR office defending your intent versus what someone else may have interpreted." And that was his HR training – all 60 seconds of it.
Over the past 15 years, Cory has taken his director's advice to heart. But the first time he deviated from the rule, he almost found himself on the wrong side of HR guidelines relating to employee accommodations. He discovered, merely through observation, that he had a direct report with what he expected to be a vision impairment. The employee's work quality was great – but he noticed the employee leaned in really close to the PC monitor. Cory thought, "Hey, I'll be a nice guy and see if I can secure a larger monitor or screen magnifier." He asked his director how he might go about securing additional equipment. She succinctly stopped him in his tracks – and explained to him how employee accommodations work; they start with a request from the employee, not the other way around.
Legal Perspective – Accommodation Requests Under the ADA
Cory's director was partially right when it comes to accommodation requests under the Americans with Disabilities Act (ADA). The EEOC's Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act provides that "as a general rule, the individual with a disability – who has the most knowledge about the need for reasonable accommodation – must inform the employer that an accommodation is needed." The request can be made verbally or in writing. The employee does not need to use any "magic" language when making the request, reference the ADA or even use the term "reasonable accommodation." The request does not mean that the employer is required to provide the change; rather, the request is the first step in an informal, interactive process between the employee and the employer. Nevertheless, the EEOC notes that there may come a time when the employer should initiate the reasonable accommodation interactive process without being asked by the employee. This should occur if the employer (1) knows that the employee has a disability; (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.
Regardless of whether the employee or employer initiates it, the interactive process requires (1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employee's request and (3) offering an accommodation that is reasonable and effective.
So, should Cory have initiated the interactive process even though the employee had not requested an accommodation? The answer is no. In this scenario, he had no notice that the employee had a disability. Second, Cory had no indication that the employee's alleged disability – a vision impairment – impeded the employee's ability to perform his essential job functions. In fact, he noted that the employee's work quality was great. Finally, there was no indication that the employee's alleged disability prevented him from requesting a reasonable accommodation himself.
While Cory's situation did not trigger the employer's duty to initiate the interactive process under the ADA, employers should recognize that this duty does exist and that the employee is not the only party who may need to initiate the accommodation process under the ADA.
77% of workers with disabilities say their employer has done a better job supporting them since the pandemic started
2021 was a prominent year for DE&I efforts across businesses nationwide. Hybrid work not only helped with issues like workplace discrimination, but ushered in a more accessible environment for disabled workers.
According to a recent Adobe survey of 1,000 full-time workers, part-time workers, and students based in the U.S. — including respondents with and without disabilities, employers have done a better job supporting disability needs, but improvements can be made to etiquette education, recruitment and retention.
With 1 in 4 American adults (61 million) identifying as disabled, according to the CDC, it’s important for employers to have policies and initiatives that prioritize and empower workers with disabilities. The start of the Covid-19 pandemic caused workplaces to be more intentional in creating workplace inclusivity, and many survey respondents noticed a major change. In fact, among people with disabilities, over three-quarters say their workplace is doing a better job of supporting them (77%), while a similar number of people say their co-workers are considerate of their unique needs.
But though progress has been made, there is still room for improvement. About 70% of respondents with disabilities rated their organization’s disability etiquette training as “fair,” which indicates that improvements are needed. In addition, more training was embraced by others, with 77% of employees interested in learning more about the impact of mental wellness and how to work with diverse learning styles.
The majority of survey respondents without a disability (82%) say they frequently or sometimes consider the accessibility needs of their coworkers with disabilities. However, the remaining 18% report that they rarely or never consider the accessibility needs of their coworkers.
Regardless of disability status, 84% of those surveyed feel co-workers would benefit from workplace accessibility. According to EARN, the employer assistance and research network on disability inclusion, workplace accessibility isn’t limited to just physical accessibility; it includes digitally accessible information and communication technology as well. Accessibility at work is also valuable for business owners.
“It’s not only people with disabilities who benefit from accessible workplaces. Accessible workplaces help businesses increase productivity; ensure a wider pool of talent can apply for, maintain and advance in employment; and expand their potential customer base,” EARN says on their website.
The majority of members of the disability community surveyed by Adobe (almost 3 in 4) say that accessibility and inclusivity benefits are a deciding factor in evaluating a job opportunity. Most millennials, with and without a disability, found these benefits particularly important, with 80% citing them as a major decision-making factor.
As Americans are increasingly quitting their jobs in the current “Great Resignation,” the pressure is on for employers to improve their initiatives to retain staff. Among people with disabilities, mental health support was a leading area of interest, with 73% identifying it as a major concern, compared to 33% of those without disabilities.
Access to hybrid work was also a major deciding factor among employees, especially with the ongoing pandemic. Adobe found that 46% of the general population first look at a companies’ hybrid and remote work policies when deciding about an employment opportunity. This was even more favorable amongst the disability community, with 58% preferring remote and hybrid workplaces.
Caregiving in the United States 2020
Family and friends comprise the most basic unit of any society. For individuals who take on the responsibility of caring for another person through sickness or disability, it can often be challenging to see beyond the individual experience.
As individuals, families, and communities continue to confront the novel coronavirus (COVID-19), we are reminded how much we need our family and close friends to keep going. As the U.S. continues to address this unprecedented situation, the need to recognize and support family caregivers as the cornerstone of society will only become more important.
Today, more than one in five Americans (21.3 percent) are caregivers, having provided care to an adult or child with special needs at some time in the past 12 months. This totals an estimated 53.0 million adults in the United States, up from the estimated 43.5 million caregivers in 2015.
The report highlights the nearly 48 million caregivers caring for someone over the age of 18. Key findings include:
- Nearly one in five (19%) are providing unpaid care to an adult with health or functional needs.
- More Americans (24%) are caring for more than one person up from 18% in 2015.
- More family caregivers (26%) have difficulty coordinating care up from 19% in 2015.
- More Americans (26%) are caring for someone with Alzheimer’s disease or dementia up from 22% in 2015.
- More Americans (23%) say caregiving has made their own health worse up from 17% in 2015.
- Family caregiving spans across all generations, including Boomers, Gen-X, Gen-Z, Millennials, and Silent.
- 61% of family caregivers are also working.
Signs That Age Equity Is Gaining Workplace Relevance (At Last)
While progress toward workplace age equity has been slow, this past year shows definite signs of improvement. As a result, there is an elevated awareness of workplace age bias and discrimination and the need for companies and organizations to address it.
Earlier this year, the U.S. Equal Employment Opportunity Commission (EEOC) made it very clear: job postings conveying preference — for example, “recent graduate,” young,” “energetic,” are examples of a recruiting practice that may involve systemic age discrimination. The update provided transparency by explaining the use of administrative and litigation tools used to identify and pursue systemic discriminatory practices.
In March, the World Health Organization (WHO) released its Global Report on Ageism and issued a call-to-action for all ages. In collaboration with the United Nations, the 200-page report defined a myriad of ways ageism manifests across the age spectrum. Promoting the report’s release, WHO Director-General Tedros Adhanom Ghebreyesus underscored how insidious and socially acceptable ageism is and how important it is for all countries to participate in actions to prevent it.
At the same time, the Urban Institute released the results of a study showing how the unemployment rate for older workers was at the highest annual rate on record–more than double that of younger workers. Not only is it more challenging for older workers to find employment, the lack of opportunity often forces them to dip into retirement savings or take early social security, robbing them of future earnings.
After several years in the making, the documentary “Duty Free” became a prominent media backdrop to the ageism conversation. Released in May, the film features Rebecca Danigelis, who was fired without cause at age 75 from her job as a hotel housekeeper. Documented by her son, writer and film-maker Sian-Pierre Regis, her story elevates the concern for workplace ageism and the resulting financial insecurity affecting older people who are denied employment opportunities. As a result of the film’s success, Danigelis and Regis are frequent guests in media outlets, most recently MSN and CNN.
Companies Are Responding
The heightened focus on workplace age discrimination has prompted many companies to explore the topic internally, with workplace focus groups, training or by initiating employee resource groups (ERGs) to address age bias and discrimination across the age spectrum. One common terminology for an ERG that spans the age spectrum is iGen, which companies such as Bank of America, the Federal Maritime Commission and TRANE adopted.
ERGs that address age equity are well-positioned to impact the work culture positively. Not only do they provide forums for open dialogue about bias and stereotypes encountered across the age spectrum, they also offer leaders key insights. For example, Dexcom’s ERG Graycom approached their Human Resources leader to request “age” be added to the company’s equal opportunity statement. Not only did HR quickly make the change, but they also reviewed their employee policies to ensure age inclusion where appropriate.
A Lot Depends on the U.S. Government
The U.S. House of Representatives introduced and passed to the Senate two crucial pieces of age-related legislation. The Protecting Older Workers Against Discrimination Act (POWADA) and Protect Older Job Applicants Act of 2021 (POJA).
POWADA will ease the burden of proof required in an age discrimination complaint and restore protections under the Age Discrimination in Employment Act that were compromised by the U.S. Supreme Court’s 2009 ruling in Gross v. FBL Financial Services, Inc. POJA will prohibit employers from limiting, segregating or classifying job applicants based on an applicant's age.
Both pieces of legislation were passed to the Senate and have been referred to the Committee on Health, Education, Labor and Pensions.
The Future of Work Is Age Inclusive
"The future of work is ripe for positive change," said Deborah Gale, gerontology researcher and intergenerational expert. "If you look at any current job posting–particularly for new companies, it is instantly apparent that most of the jobs today were created over the last few years. To a large degree, no one has experiential wisdom–everyone is making it up as they go along."
The newness of job roles levels the playing field. Even non-tech roles positions require ongoing technology upskilling. This means recruiters seek applicants with an entrepreneurial mindset, who can turn on a dime and have the soft skills to build team cohesiveness in times of constant change. It means companies need a little bit of everything–and everyone–to succeed. They need diverse perspectives from across the age spectrum.
"There are not enough young people aging up to replace older workers," said Gale. "Employers are waking up to the fact that they need both older and young workers and the costs of an ageist work culture are too steep. That is where the real benefits of an intergenerational workforce shine.”
A recent Time article demonstrates that a growing number of companies, such as AIS, Microsoft, Marriott and Macy’s are among more than 1,000 employers nationwide that have signed the AARP Employer Pledge to promote equal opportunity across the age spectrum. The article optimistically suggests “the future for some older workers—many of whom are more accustomed to getting pink slips or buyout offers—might be brightening.”
Still, much work is needed to create workplace age equity across the age spectrum.
When exclusion of a particular group is embedded into the work culture, the safety of belonging is interrupted. The exclusion of older workers is particularly unsettling given that it predicts the future work experience for anyone younger.
Across the age spectrum, it takes everyone to create a workplace we all want to age in. Employees need to understand the many ways ageism shows up in the workplace and that requires training. Everyone should be accountable for creating change. But for that to happen, leaders need to proactively build a diverse, age-equitable workplace and set the example they expect others to follow.
United States: New York City Enacts Law To Regulate Use Of Automated Hiring Tool
Over the past decade many employers have adopted Artificial Intelligence driven tools to automate various aspects of the workplace, including the recruiting and hiring process. These tools have come under scrutiny by federal, state and local governments based on research that has suggested the possibility of bias or discrimination arising from the widespread use of such tools. Due to a new law in New York City, effective January 1, 2023, New York City employers will be prohibited from using automated employment decision tools to screen applicants and employees, unless the tool has been subject to a bias audit and the employer satisfies a series of potentially burdensome notice requirements.
Under the law, it is unlawful for an employer or an employment agency to use an automated employment decision tool to screen a candidate or employee for an employment decision unless: the tool has been the subject of a bias audit conducted no more than one year prior to the use of such tool; and a summary of the results of the most recent bias audit (as well as the distribution date of the tool to which such audit applies) has been made publicly available on the employer's website prior to the use of such tool. The audit must be conducted by an independent auditor and assess whether the tool has a disparate impact on race, ethnicity and gender.
Automated employment decision tools include "any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for making employment decisions that impact natural persons." However, this does not include any tool "that does not automate, support, substantially assist or replace discretionary decision-making processes and that does not materially impact natural persons, including, but not limited to, a junk email filter, firewall, antivirus software, calculator, spreadsheet, database, data set, or other compilation of data."
In addition, if an automated employment decision tool will be used to substantially assist the employer in making job decisions, employers are required to inform affected employees or applicants who reside in the city of the following:
Employers who violate the law will be subject to fines of up to $500 for a first violation and each additional violation occurring on the same day as the first violation, and between $500 and $1,500 for each subsequent offense. The city's corporation counsel is also authorized to initiate court proceedings to seek injunctive relief or such other relief as may be appropriate.
- that an automated employment decision tool will be used in connection with the assessment or evaluation of such employee or candidate (this notice must be made no less than ten business days before such use and allow a candidate to request an alternative selection process or accommodation);
- the job qualifications and characteristics that the automated employment decision tool will use in the assessment of the candidate or employee (this notice must be made no less than ten business days before such use); and
- if not disclosed on the employer or employment agency's website, information about the type of data collected for the automated employment decision tool, the source of such data and the employer or employment agency's data retention policy must be available within 30 days of a written request by a candidate or employee (unless disclosure would violate local, state, or federal law, or interfere with a law enforcement investigation).
OPINION: Companies must act to support trans colleagues in the workplace
I am biracial, queer, and trans. I grew up in an inner-city suburb of New York City. At the time, it was impoverished, crime-ridden, and centered around gang activity, a relatively dangerous place for the average resident, and especially dangerous for someone like me. And for the past six years, I’ve had the privilege of working at one of the world’s leading consulting firms – the safest environment I’ve ever found.
I still have to be careful. My colleagues are caring and supportive, but I must make deliberate choices every day anchored in my safety. Should I serve this client or travel to that city? Should I attend a certain team or client outing? Will “coming out” be the safest option? In any situation, I have to wonder whether being my true, authentic self would bring more harm than happiness.
While other marginalized groups strive to be included in the workplace, trans people long to feel safe. Many say how safety – physical, mental and emotional – is their biggest concern in their decisions not to work in certain industries.
According to the data, those concerns are warranted. At least 45 trans people in the United States were murdered in 2021, the deadliest year yet, according to Human Rights Watch. They face many other challenges:
- Trans adults are twice as likely as cisgender adults to be unemployed
- About 29% of trans people live in poverty, compared with fewer than 8% of the U.S. population at large
- Cisgender employees earn 32% more than their trans colleagues with similar or higher education levels
- Always being on the lookout for stigma, discrimination and danger makes many trans people wary and anxious, which can harm their mental health and lower their productivity
- More than 100 bills meant to limit the rights of trans people have been proposed this year, the most in U.S. history; more than a dozen have passed.
Companies ought to improve the experience of trans employees because it’s the right thing to do. Being committed to diversity, equity and inclusion means being committed to uplifting all marginalized communities, not just some of them. This is now a mainstream view. In January, President Joe Biden signed an executive order implementing a landmark 2020 Supreme Court ruling that protected LGBT+ people from workplace discrimination.
Making progress won’t be easy; it takes time and the steadfast support of senior leaders.
Transgender inclusion requires awareness and education, typically beginning with vocabulary. It extends to targeted recruiting, trans-affirming benefits including mental health and hormone therapy, and trans-inclusive policies and programs such as revisions to dress codes, the elimination of gender-specific language, and the installation of gender-neutral bathrooms, for example.
Senior executives could model inclusive behaviors by asking people which pronouns they use and using a range of pronouns themselves, such as she/her, he/his and they/them, in their email signatures, videoconference screens and so on.
My shift in pronouns from he/him to they/them has created opportunities to improve awareness, education and understanding in my firm and with clients. As a resilient leader in a senior role, I’ve had the luxury of responding to the occasional scoff with an invitation to move from ignorance to insight.
Our research shows that if companies can increase the representation of trans people in their workforces and provide them with more development opportunities, the annual household incomes of those workers could increase by 28% or nearly $15 billion, which could mean a more than $11 billion increase in consumer spending each year.
In my view, the economics are just a footnote. Everyone should feel welcome, valued and safe at work, in our neighborhoods and at home. That’s not too much to ask in a nation as rich and diverse as ours.
Sexism in the construction industry
Sexism has long been an issue in the construction industry and if recent studies are anything to go by, we can assume that it is in fact worse now than it was in the past.
An annual Women in Construction study recently revealed that of the 4,200 construction workers that were surveyed, 41% of women said they had received inappropriate comments from a male colleague in the workplace, compared to 28% of women in all workplaces in 2018.
When the report asked construction workers why they thought so many women leave the industry, almost half (47%) cited the male-dominated culture, while 30% blamed outright discrimination. While reports of sexism against women far outweigh those against men, the findings suggest that the issue is not solely one-sided, with 8% of men reporting being on the receiving end of inappropriate comments made by female colleagues*.
Whether the rise in reports of discrimination is due to an increase in actual cases or down to more people feeling confident and empowered enough to come forward about prior experiences, it is clear the construction industry still has a long way to go if it wants more women to join the trade, and for those already employed to feel confident in their ability to progress.
When it comes to assessing how we can resolve these issues and bring about change, we must look to those in the industry who are reporting cases of sexism and other forms of discrimination.
When asked how we can persuade more women to stay in the construction industry, for example, the Women in Construction study found that over half of women (52%) wanted more equal opportunities, while 50% felt that flexible working hours would be a positive step forward.
Shockingly, a quarter of respondents (25%) expressed that a more serious approach to sexual harassment was needed in the industry – suggesting that many claims are still not being taken seriously.
Training on sexism and sexual harassment
Increased training on sexism, sexual harassment and other discrimination is just one way to help combat sexism in the construction industry both now and in the future. Additionally, training on the more covert forms of sexism such as language – “stop being such a girl”, “man up”, etc. – needs to be pushed and claims on such issues taken more seriously.
Studies suggest that a continued lack of women in the construction industry plays a big role in the ongoing sexism faced by many. While women can, of course, direct sexism to others of any gender orientation, the lack of women in roles higher up and female voices speaking about relevant issues may be what is stunting the industry’s development in problem areas.
Lack of female role models
The study, Women in Construction, revealed that 49% of female respondents felt that a lack of female role models in the industry was a factor for them being unable to progress in their field.
Part of the issue may also stem from recruitment – roles in the construction industry are subliminally directed towards and offered to predominantly men. From the get go, women are not drawn to construction roles because they don’t see themselves represented in advertisements or as successful in the industry. This naturally leads to less women entering the construction industry, meaning less representation and so on.
Industry professionals need to actively work towards recruiting women at all levels, and perhaps even work with schools to eliminate the idea that construction is just for men.
‘Have a thick skin’
Another issue within the construction industry is the stereotypical view that people need to have a thick skin and that they should be prepared to take the insults as banter and “just a joke” – regardless of your gender, sexual orientation or race etc. Not every business within our industry is like this but unfortunately it does still happen.
Other industries – hospitality, office work, healthcare, etc. – have more stringent processes in place to address this kind of behavior, and while some businesses in construction do have rules, there is a stigma that anyone complaining about ‘banter’, which is actually discrimination (whether its sexism, racism, ageism, ableism and so on) – is weak in some way.
Being forced to accept it as banter because of some unspoken, outdated rule is toxic and detrimental to mental health. Those in the industry need to work towards changing the narrative and educating and improving processes to help those who have been discriminated against.
Sexism is still a huge problem everywhere, in every aspect of life and work but, as mentioned above, research suggests that construction professionals are hugely affected by sexism, and that instances of discrimination are on the rise. Change needs to happen in every aspect of the industry – from education to recruitment, from the treatment of employees in the industry to how sexism claims made against colleagues are handled.
It cannot simply be the job of those higher up to dish out punishments and take action when problems occur; employees at every level must be able to recognize sexism when it happens and call it out, while feeling supported by their company to address concerns directly.
Termination for Absenteeism Might Have Been Pretext for Discrimination
While an employer's reason for firing an employee, such as absenteeism, may appear to be a legitimate, nondiscriminatory reason, it may amount to a pretext for discrimination or retaliation if it conflicts with an employer's internal policy, the 1st U.S. Circuit Court of Appeals held.
The plaintiff, who was employed as a people greeter at Walmart, experienced a work-related injury that resulted in a disability. Following her return to work from the injury, the plaintiff missed several days of work and arrived late to work or left work early on several occasions due to medical appointments to treat her work-related injury. Ultimately, Walmart fired the plaintiff due to her excessive unexcused absences.
The plaintiff filed a lawsuit against Walmart alleging that the company terminated her employment because of her disability and in retaliation for engaging in protected activities. The district court disagreed, concluding that the plaintiff's attendance was an essential function of her job and there was no reasonable accommodation that would have allowed for her to attend work. Additionally, the district court found that the plaintiff's protected activities were not sufficiently connected to her termination.
The 1st Circuit reversed the district court's decision on both the plaintiff's disability discrimination claim and retaliation claim. As to the discrimination claim, the appeals court agreed with the district court that the plaintiff's attendance was an essential function of her people greeter position.
However, the appeals court determined that the plaintiff could perform the essential function of attending work with the reasonable accommodation of Walmart authorizing some of her absences or tardiness. In finding that this was a reasonable accommodation, the appeals court focused on Walmart's attendance policy, which stated that absences or tardiness related to workers' compensation are allowed and any work time that an employee misses due to a reasonable accommodation is also allowed.
Further, as to the retaliation claim, the 1st Circuit found that the plaintiff's complaint of discrimination and her request for a reasonable accommodation, which occurred less than one month before the plaintiff's termination, were sufficiently connected to her termination due to the close proximity between the protected activities and the discharge.
Lastly, as to both the discrimination claim and retaliation claim, the 1st Circuit held that although Walmart's reason for the plaintiff's termination—specifically, excessive unexcused absences—was a legitimate, nondiscriminatory reason, such reason could be a pretext for discrimination or retaliation. The appeals court relied upon an ambiguity in Walmart's attendance policy that made it unclear whether the plaintiff's absences could be excused under the policy.
Benson v. Wal-Mart Stores East LP, 1st Cir., No. 20-1495 (Sept. 15, 2021).
Professional Pointer: When drafting employment policies and job descriptions, it is important for an employer to include all relevant information that informs the employees of the employer's expectations for the job to be performed by the employee.
United States: Bullying In The Workplace
Bullying has become a point of focus for parents and school administrators due to its documented harmful effects on adolescents. Unfortunately, bullying does not end with childhood.
The Workplace Bullying Institute (WBI) defines bullying as "repeated, health harming mistreatment of others in the workplace via one or more forms of verbal abuse, threats, humiliation, intimidation, work interference, or sabotage/exploitation of psychological or physical vulnerability." Though this is a helpful definition, it leaves open for interpretation whether covert or subversive acts are, in fact, workplace bullying.
According to a 2021 study by WBI, 30% of workers have direct experience of being bullied at work. With so many individuals continuing to work from home due to the COVID-19 pandemic, one would expect a reduction in workplace bullying. However, the WBI study indicates that 43% of remote workers are bullied. Such bullying during remote work happens most in virtual meetings. The average age of the typical bullying target is 41, and 61.3% of bullying is same-gender bullying. According to the study, when bullying is reported, American employers tend to react negatively.
Such a response is troubling-and a mistake-as bullying contributes to a hostile and intimidating work environment for employees. It can also have a significant impact on an employer's bottom line, including workers' compensation costs. Employees who suffer from aggressive behavior in the workplace can suffer injuries, which can be physical, mental, or both. An employee may be intimidated by an employer to not report a valid work injury or be reluctant to return to a job with modified duty due to legitimate fears of harassment.
Due to the prevalence of workplace bullying, 31 states around the country are seeking to pass healthy workplace laws. These laws are designed to deter bullying in the workplace by allowing a direct cause of action against the offender, and restoration of lost wages and benefits. For instance, in Pennsylvania, the proposed Healthy Workplace Act states, "An employee may not be subjected to an abusive work environment by an employer or other employee." It prohibits retaliation against the employee for reporting bullying while also holding both employers and other employees liable for violations of the act, and it allows for relief to the abused employee, including damages for pain and suffering, emotional distress, punitive damages, and attorney's fees. If approved, the act would remove workplace bullying from the workers' compensation realm, allowing for a much different remedy for employees. As of now, however, this bill has not been approved, so workplace bullying that results in injury would, in most instances, still fall under a state's Workers' Compensation Act.
A recent case in California barred a wrongful-death cause of action by the family of a worker who alleged that the worker committed suicide after experiencing workplace bullying. The wrongful death claim against the employer and supervisor was denied because workers' compensation was the exclusive remedy. The decedent employee had worked for the employer since the early 2000s and, starting in 2002, had written numerous complaints alleging workplace violence until his death in 2015. The lawsuit alleged the decedent employee was bullied, ridiculed, and harassed at work by a number of co-workers, and his employer and supervisor failed to prevent those acts, causing his death. The employer and supervisor moved for summary judgment on the basis of their affirmative defense that the claims were barred by workers' compensation exclusivity. The trial court granted the motion, and the appellate court affirmed. Most states have similar exclusive remedy provisions.
The exclusive remedy provision is a section in most states' Workers' Compensation Acts that provides how injured workers can seek compensation from their employers after an on-the-job injury. Most situations provide that workers' compensation is the remedy, and typically bar a third-party claim seeking personal injury unless an exception attaches. In most situations, a co-employee is similarly immune from civil actions, with similar exceptions to the employer.
In the California case, the courts held that the exclusive remedy precludes lawsuits based on employers' actions that are a normal part of the employment relationship. This includes yelling, humiliation, and the use of insults and profanities by an employer against an employee, if the conduct involved conflicts arising from the employment relationship. Accordingly, the court determined that workers' compensation was the exclusive remedy, affirming the trial court's decision to dismiss the lawsuit.
So how does workplace bullying fit into the workers' compensation system? The injuries typically result in psychological or mental injuries rather than physical injuries. There are typically three categories of mental or psychological injuries in workers' compensation:
1. Physical/mental: Involves a physical stimulus resulting in a mental injury.
2. Mental/physical: Involves a mental stimulus resulting in a physical injury.
3. Mental/mental: Involves a mental stimulus resulting in a mental injury.
Most workplace bullying involves verbal abuse of one employee by another. Accordingly, most injuries suffered by the employee would likely fall into the mental/ mental category, which involves psychiatric or psychological injuries or conditions that result from a non-physical stimulus. For example, verbal harassment of employee "A" by employee "B," or by a supervisor, may cause employee "A" to develop fear, anxiety, depression, or other psychological issues without a physical manifestation of an injury. There is typically a higher burden of proof for these cases in terms of requiring a need to prove an abnormal working circumstance to succeed on a mental/ mental injury.
Mental/physical cases are typically easier to prove, as actual physical symptoms develop as a result of the bullying, such as nausea, vomiting, and tremors. Thus, they have a lower burden than mental/mental cases and do not require an abnormal working circumstance.
Physical/mental is the most unlikely category, as it would require a physical stimulus that resulted in a mental injury. Though bullying could certainly include physical contact, it would, at that point, be considered more of an assault and the employer would likely take immediate action to terminate the employment of the aggressor in the assault, thereby lessening any psychological impact on the injured worker.
In mental/mental cases, it is difficult to determine what conduct would rise to the level of an abnormal condition in the workplace. Each individual case has to be examined based upon the specific facts involved. The employer would need to present testimony and evidence from coworkers, supervisors, or human resources to rebut the testimony and evidence presented by the injured worker who alleges they were the victim of workplace bullying. If the injured worker can establish a pattern of bullying or verbal abuse, they are more likely to succeed.
On the other hand, if the employer can present evidence that such conduct was never reported to a supervisor or human resources, the employer will likely have a good chance of defeating the claim. In all three scenarios, an expert psychiatric evaluation should be conducted, and the expert should be provided with all information from both sides so that a well-reasoned opinion can be obtained regarding whether the claimant is truly suffering from a psychiatric or psychological injury caused by the alleged workplace bullying.
Unfortunately, unless witnessed by other employees, bullying often comes down to one employee's word against another's. Employees who are truly being bullied are best served by making continual complaints to supervisors or human resources so that a record is kept. Employers must be careful to not appear to trivialize an employee's complaints and take all complaints seriously. Like school districts across the country, employers should make workplace bullying risk management a priority in an effort to avoid or mitigate employee harm and eliminate exposure to future potential claims.
80% of Employees Experienced Discrimination While Working Remotely According to AllVoices' 'State of Workplace Discrimination 2021' Report
As part of an ongoing research series around the State of Workplace Wrongdoing in 2021, the State of Workplace Discrimination 2021 report surveyed US full time employees from across all sectors and job levels to better understand their experiences, frustrations, and suggestions for how their organizations can improve the handling of workplace discrimination.
Commenting on the findings, Claire Schmidt, CEO and founder of AllVoices, said: "In the face of 'The Great Resignation' it is more important than ever for organizations to build safe and happy workplaces for employees. This report finds that discrimination in the workplace is widespread and ongoing, despite the move to remote work and perhaps despite some companies' best efforts. We want to encourage and support companies in their efforts to hear, learn, respond, and grow in a way that prioritizes inclusivity, trust and safety."
Key findings include:
"Organizations looking to improve their employee feedback program need to first start listening to their employees to find out what their blind spots might be, which initiatives they really need, and what conversations the organization should be having. It's also about implementing channels for anonymous feedback, and shoring up internal processes to ensure that reports are being tracked and resolved," added Schmidt.
- 55% have experienced discrimination at their current company
- 80% experienced it while working remotely
- 61% have witnessed discrimination at some point
- Only 54% who reported have had their matter fully resolved
- 90% are more likely to report through anonymous channels
Workplace Misconduct Cost U.S. Businesses $20 Billion In Past Year: New Study
Bullying, discrimination, sexual harassment and other forms of workplace misconduct can create a crisis for any company—and trying to ignore or cover it up will make a bad situation worse.
In addition to costing an organization its image, reputation and credibility, misconduct in office and other settings can impact their bottom line. The financial hit to U.S. businesses in the past year was an eye-popping $20.2 billion, according to a new study published today by Vault Platform, a workplace misconduct reporting platform.
The company explained that the multi-billion figure is based on what the Society of Human Resource Management said in 2016 was the average cost ($4,129) to hire a new worker to replace one who left because of their experience with misconduct at their place of work.
That could be a conservative number, since it apparently does not include any legal, compensation or other costs associated with the departure or replacement of employees and is based on a five-year old estimate.
Major Survey Results
The survey polled 2,000 office staff across the U.S. and UK to understand transatlantic experiences of misconduct in the workplace. The research project was conducted in October 2021 by Norstat, a polling company.
- Workers who had to take time off in 2021 due to their experience with workplace misconduct missed, on average, six days of work or 43 million sick days. This resulted in a $8.54 billion loss for the U.S. economy.
- 14% of staff who experienced workplace misconduct in the last 12 months ended up leaving their jobs.
- 75% of U.S. office workers have experienced or witnessed some form of workplace misconduct during their working lives.
- Harassment was the most common form of misconduct in the U.S., with over a quarter (26%) of office workers having experienced this at some point in their careers.
Surprised By Numbers
Neta Meidav, CEO and cofounder of Vault Platform, said she was surprised by “the sheer number of office workers that have witnessed or personally experienced misconduct (bullying, harassment, discrimination, fraud, bribery etc.) in their careers…”
“Demonstrating the extent to which this has become a systemic issue, almost half of office workers (48%) experience workplace misconduct at least once per month,” she said.
A Dangerous Gap
Meidav warned that, “The gap between expectation and reality is a dangerous one. We have the evidence to show that in both the U.S. and the U.K., employers and their staff remain poles apart in their experience and attitudes to workplace misconduct.
“Businesses can no longer afford to sit back and allow abuse in any form to fester, with societal and technological change placing greater pressure upon them to act. While the issue has moved away from a lack of acknowledgement from the employer, there is still a huge trust gap, leaving a chasm where staff are in fear of speaking up,” she concluded.
Preventing Workplace Misconduct
Kabrina Krebel Chang is an associate dean for diversity, equity and inclusion and a clinical associate professor of business law and ethics at Boston University’s Questrom School of Business. She recommended that corporate executives take the following steps to help prevent misconduct in the workplace.
Get The Message Across
“Make it clear to all workers that every person deserves to be treated with respect and professionalism. Getting this message across and deeply engrained in a culture can take time and often requires repeated conversations about why our individual identities and the identities of others are important and should be respected. It is critical to culture and is the fulcrum that prevents misconduct being viewed just as something you don’t want to get caught doing rather than something that is fundamentally wrong,” Chang said.
Tone Is Important
“Tone from the top is important here, senior leadership must model this behavior every day to show employees that they matter. Tone from the middle is also important; managers are on the ground everyday with their teams and are positioned to reinforce this messaging, read the climate of their workplace, and model respectful conduct,” she advised.
“Empowering employees to speak up when they witness or experience misconduct such as harassment, bullying, and discrimination, is an important step to discouraging this type of behavior. Senior leadership must support and empower managers and managers must support and empower their staff. For this to work, there must be appropriate lines of communication for reporting concerns,” Chang counseled.
“Leadership at all levels must be held accountable and intervene rather than enable bad workplace behavior,” she recommended.
“Lastly, a more diverse and equitable management team helps employees feel more included and less vulnerable to pressure,” Chang concluded.
Don’t Treat Claims Lightly
Molly Mauck, an employment attorney with Romano Law, said, “Employers and business leaders cannot afford to treat discrimination and harassment claims lightly. There are several ways to discourage harassment, discrimination, and other workplace misconduct. You must establish clear and consistent communication with your employees, implement trainings, and create practical policies and procedures addressing prevention and reporting.”
The Right Environment
“Business leaders should cultivate an accessible and open-minded work environment. Encouraging ongoing communication will help employees …feel more comfortable conveying concerns,” she recommended.
Mauck said, ““Employee training, in particular for supervisors and hiring managers, is useful and critical to implement. Business leaders, supervisors, and employees should be educated on all forms of discrimination and harassment, the adverse effects it could have on individuals personally and the company as a whole, and how to address those complaints when they arise.”
Policies And Procedures
She said, “Employers should develop appropriate policies and procedures to prevent or minimize workplace harassment and discrimination. If an employee experiences an act of discrimination, bullying, or harassment, they should feel comfortable reporting it without fear of retaliation. An employee should understand the steps they need to take to report an act of harassment or discrimination should it happen.
“It is vital for employers and business leaders to establish a complaint policy and procedure and facilitate an approachable work environment.”
Take Accusations Seriously
“It is important that every complaint or accusation of harassment and discrimination is taken seriously and fully investigated. It is an employer’s responsibility to investigate, hear all sides, and take appropriate actions,” Mauck advised.
She observed that, “It can be equally important for employers to fully document every complaint, any investigation into that complaint or any actions taken as a result. Often times an experienced investigator or attorney can help an employer establish appropriate preventative measures and investigate any claims that may arise.”`
The CRT test has been the subject of increased scrutiny in recent months. In September, the EEOC won a similar case against an Iowa trucking company that used the exam, ruling in both cases that it violated Title VII of the Civil Rights Act of 1964, which prohibits sex-based discrimination in the workplace and the use of employment practices that "are not job-related and consistent with business necessity."
Trucking company that used controversial strength tests that 'disproportionately screened out women' ordered to pay $500,000 in damages
A Minnesota trucking company will be required to pay $500,000 in damages to women it discriminated against.
A federal judge ruled the company violated Title VII by using a strength test that "disproportionately screened out women."
The US Equal Employment Opportunity Commission (EEOC) announced on Thursday that a Minnesota-based trucking company will be required to pay $500,000 to women a federal court deemed were discriminated against through the use of a controversial strength aptitude test.
In the ruling, a federal judge found that Stan Koch and Sons Trucking "disproportionately screened out women who are qualified for truck driver positions" by requiring them to take a "CRT test" — an examination developed by Cost Reduction Technologies, a company that identifies methods to reduce workplace injuries.
"The court found that the use of an isokinetic strength test as an employment screen was unlawful because it had a negative impact on women and it was not shown to serve any legitimate purpose that benefited the company," Julianne Bowman, the EEOC's district director in Chicago, said in a statement.
Stan Koch and Sons Trucking did not immediately respond to a request for comment.
The decision comes as women hold a record number of truck driving jobs, with an all-time high 245,000 females behind the wheel, according to ZipRecruiter. And while 83% of the industry is still comprised of men, a rising number of women are finding success in the business, with some earning six-figure salaries and boasting large followings on social media platforms like TikTok.
The ruling could ultimately attract even more women to the industry, bolstering a vital talent pipeline during a period plagued by labor shortages and a national supply chain crisis. The US currently has an estimated shortage of 80,000 truck drivers, the President and CEO of the American Trucking Associations told CNN last month.
In addition to paying damages, Stan Koch and Sons Trucking will be required to provide job offers to women who had their positions revoked for failing the test. The company will also be prohibited from using physical abilities tests that have "a disparate impact in female drivers" without thoroughly demonstrating the examination is essential to the job first.
"This case should serve as a reminder to employers that when they use a hiring screen they cannot rely on justifications like 'It seemed like common sense' or 'Of course it's better to have stronger employees if the job has some physical tasks,'" Gregory Gochanour, the EEOC's regional attorney in Chicago, said in a statement.
He continued: "Employers have to demonstrate with valid evidence that the tests they use can actually predict the outcomes they are looking for."
Starbucks facing class action age discrimination lawsuit
Showing a preference for younger employees can violate the Age Discrimination in Employment Act (ADEA) and land a company in court — something coffee giant Starbucks is facing right now.
A nationwide class action lawsuit has been filed, claiming the company was not only biased toward young workers, but it showed a “blatant campaign of age discrimination in hiring.”
Here are the details of the suit.
Youth recruitment program
The lawsuit points to several common company practices to make its discrimination case.
The first was Starbucks’ youth recruitment program, which aimed to give more employment opportunities to young people, according to the company’s CEO. But the lawsuit claims this program was really used as an excuse to discriminate against employees over 40.
The original plaintiff who set the lawsuit in motion says age discrimination is a “systemic” problem at the company, particularly when it comes to management positions. As a qualified 59-year-old employee, the plaintiff was denied a promotion to store manager. Instead, a much younger employee was hired for the job. The plaintiff was eventually fired.
The plaintiff assembled a class of several other employees over 40 who were also denied promotions or were fired from management positions in favor of younger workers.
Starbucks denies the discrimination claims, stating the company has a “clear anti-discrimination” policy, and is fighting the lawsuit in court.
This lawsuit acts as a warning for employers to examine their recruiting practices for potential hidden bias. For example, do you do a lot of recruiting on college campuses? Do your job ads seek “energetic new grads”? Both of these practices could be considered age discrimination.
Recruiting heavily on social media could also cause issues, as older applicants may not be as tech-savvy. Age discrimination isn’t always as black and white as firing a 60-year-old employee and hiring a 30-year-old instead.