FEBRUARY DIVERSITY, EQUITY, AND INCLUSION UPDATE
FEBUARY DIVERSITY, EQUITY, AND INCLUSION UPDATE
Feb. 2nd, 2022
Matt Glowacki, Diversity Equity & Inclusion Chair
Jefferson County HRMA & WI SHRM
What Martin Luther King Jr. Said About Systemic Racism
King often discussed how racial equality cannot be achieved without structural change.
Martin Luther King Jr. often spoke about institutional and systemic racism, saying that true racial equality cannot be reached without “radical” structural changes in society, says a Texas A&M University sociology professor.
“Justice for black people will not flow into this society merely from court decisions nor from fountains of political oratory…White America must recognize that justice for black people cannot be achieved without radical changes in the structure of our society,” King wrote in an essay published in 1969 titled “A Testament of Hope.” In his 1958 book Stride Toward Freedom, he wrote, “True peace is not merely the absence of tension; it is the presence of justice.”
Joe Feagin, the Ella C. McFadden Professor in Sociology and Distinguished Professor, said those are just two of the many times King spoke of structural changes needed to achieve equality, but first and foremost of the need for white and Black people to agree on what “equality” actually means.
Feagin said King noted in a speech not long before his 1968 assassination that a major problem was getting white people to understand the meaning of the civil rights movement because there isn’t even a common language when the term “equality” is used.
King said that many white people, even well-meaning people, think that equality means Black people have to improve.
Feagin said King’s commentary on what equality means to many white people, and how some do not want to face that, is as accurate now as then.
“We whites created slavery, Jim Crow segregation and contemporary racial discrimination over 400-plus years now,” Feagin said. “Whites are the main racial villains in this story and have most of the political and social power to change that racial discrimination and inequality now.
We cannot have a truly free and democratic society, with ‘liberty and justice for all’ until we do that.”
“The first step to do that is for whites of all ages to learn an honest history of this country’s systemic racism and the Black movements against it—something many whites today are not even willing to begin doing.”
Feagin said holding white people accountable for the promises of freedom and equality made by the founding fathers was a major theme in King’s legendary “I Have a Dream” speech at the nonviolent 1963 protest March on Washington.
“Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation,” King said in front of the Lincoln Memorial on Aug. 28, 1963. “But 100 years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination.”
King referred to discriminatory treatment of Black people by police saying, “We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality.”
Police brutality is a systemic problem, Feagin said, noting the March on Washington was all about institutional and systemic change to advance things like job training and voting rights, and to end workplace discrimination and segregation.
The Southern Poverty Law Center published a report evaluating the educational standards for teaching about the civil rights movement in all states and the District of Columbia. “They found the typical efforts on the part of mostly white legislators and educators in most states were to ignore or superficially review this important human rights movement and its racist context,” Feagin said. The report noted instruction was mostly limited to Martin Luther King and Rosa Parks and that only a handful of states required significant attention on the movement and the lessons it can teach about citizenship.
Feagin said avoiding teaching about the civil rights movement, or not exploring it thoroughly, goes against what King said: “He argued that if racism is ever to be eradicated, white people ‘must begin to walk in the pathways of [their] black brothers and feel some of the pain and hurt that throb without letup in their daily lives.'”
Feagin said, “How can we feel their pain without learning about it?”
The Black Mamas Matter Alliance Is Asking Chuck Schumer To Help With Workplace Discrimination
THE ALLIANCE SAYS BLACK PREGNANT WOMEN FACE HEALTH RISKS AND ECONOMIC HARDSHIP DUE TO DISCRIMINATORY PRACTICES IN THE WORKFORCE.
The Black Mamas Matter Alliance is calling on Senate Majority Leader Chuck Schumer to help put an end to the discrimination Black pregnant women face while on the job.
The organization recently drafted a joint letter with A Better Balance to Schumer and asked him to bring “the Pregnant Workers Fairness Act to a vote without delay.”
Angela D. Aina, the Co-Founding Executive Director of Black Mamas Matter Alliance told ESSENCE, “Black women have among the highest labor force participation rates in the country and 80 percent of Black women are their family’s primary breadwinner. Nearly thirty percent of pregnancy discrimination complaints are filed by Black women. This is because of the multiple forms of discrimination Black workers and other workers of color too often face in the workplace.”
The letter stated that as a result of discriminatory practices in the workplace, “Black mamas and pregnant people are suffering both economic hardship and negative health outcomes due to pregnancy discrimination and the lack of support in their workplace.”
Dina Bakst, the Co-Founder and Co-President of A Better Balance told ESSENCE that, “Black pregnant workers are disproportionately denied reasonable accommodations required to maintain a healthy pregnancy on the job.”
She continued, “Black pregnant women who work in low wage and physically demanding jobs too often must risk their health at work or get pushed off the job when pregnant or after giving birth.”
Aina stated, “When Black pregnant [women] must continue working without accommodations they risk miscarriage, excessive bleeding, and other devastating health consequences.”
“Systemic racism appears in many forms, especially in the workplace. For example, we see it in the stark lack of access that many Black birthing people and pregnant workers of color have to critical supports like pregnancy accommodations, paid family and medical leave, and child care access,” Bakst stated.
She added that Black pregnant women are “less likely” to be offered these types of workplace policies.
The alliance believes the Pregnant Workers Fairness Act will minimize the risk Black pregnant women face while on the job and will grant them better economic security.
Aina stated, “one piece of legislation cannot overturn systemic racist practices in the workplace overnight. However, this critical legislation will enable pregnant workers, particularly Black women, to ask for and receive accommodations that are reasonable and timely to stay healthy and remain employed.”
The “Angry Black Woman” Stereotype at Work
The angry Black woman stereotype exists in many parts of American culture — including the workplace. Studies show people in organizations believe Black women are more likely to have belligerent, contentious, and angry personalities, an assumption not as...more
The angry Black woman stereotype has penetrated many parts of American culture, including the workplace. This pervasive stereotype not only characterizes Black women as more hostile, aggressive, overbearing, illogical, ill-tempered and bitter, but it may also be holding them back from realizing their full potential in the workplace — and shaping their work experiences overall.
The U.S. Bureau of Labor Statistics says Black women make up nearly 7% of the workforce, and still, they are severely underrepresented in leadership positions, especially among CEOs of Fortune 500 companies. Ursula Burns, the former CEO of Xerox, became the first Black woman CEO of a Fortune 500 in 2009. As of 2021, Walgreens CEO Rosalind Brewer and TIAA’s chief executive officer Thasunda Brown Duckett are the only two Black women who currently hold that position. Overall, the U.S. Department of Labor reports that in 2020, Black women’s unemployment rate was 10.9%, compared to 7.6% for white women.
These realities led to our desire to look more closely at the angry Black woman stereotype. We argue that companies could miss out on the full contribution of Black women in their organizations because of this image.
Where The Angry Black Woman Stereotype Came From
Notably, characterizing Black women as loud, irascible, too straightforward — and just plain angry — isn’t a new practice. In her book Ar’n’t I a Woman? Female Slaves in the Plantation South, Rutgers University history professor Deborah Gray White notes that the angry Black woman image is deeply rooted in American culture and dates back to chattel slavery in the U.S.
The trope has been a prolific profile for decades in politics, books, films, and namely, popular television shows. In fact, many characters that are welcomed as cultural favorites utilize the stereotype of an angry Black woman. There’s Sapphire in Amos ‘n’ Andy in the ’50s and Florence in The Jeffersons in the ’70s. Comedian Martin Lawrence portrayed Sheneneh in his eponymous ’90s sitcom, and today reality TV star Nene Leakes is a meme favorite, radiating disapproval and sass. (Leakes’ famous expressive eye roll is markedly immortalized in the Smithsonian’s National Museum of African American History and Culture.) The angry Black woman is an image that feels familiar in pop culture — and organizational life.
How It Impacts the Workplace
Anger is a commonly expressed emotion in the workplace. But our research has found that when some people see a Black woman become angry, they’re likely to attribute that anger to her personality — rather than an inciting situation.
This may be explained by attribution theory, a psychological theory that looks at whether people attribute causes of behavior to either internal or external characteristics. An internal attribution occurs when the behavior is perceived to be about the person themself.
For example, we may think a Black woman expresses anger because she has an angry disposition. An external attribution occurs when the behavior is attributed to a frustrating or unfair situation. In this case, if we see an employee expressing anger at a supervisor, we might believe it’s because her boss treats her unfairly, which leads to less negative assumptions about the person.
As research in the Journal of Personality and Social Psychology points out, stereotypes provoke internal attributions.
A Deeper Look
To learn more about the angry Black woman stereotype, we conducted two experiments that looked at reactions when people express anger at work. In our first experiment, we asked more than 300 undergraduate business students to watch one of eight videos, in which they observed a male supervisor to one of his employees. In each video, there were three factors at play: race, gender, and emotional response of the employee. (The employee was either Black or white, male or female, and angry or neutral.) When the employee was angry, their tone began to increase, eventually shouting and yelling at the supervisor.
After watching the video, participants of the study answered a series of questions, including questions about attributions (like was the employee’s anger internal or external?) performance evaluations (such as is this employee a good performer?) and leadership capabilities (for example, would this employee be a good leader?).
Our results found participants were more likely to attribute the anger of Black female employees to internal characteristics, or her personality. This had negative consequences because internal attributions translated into lower performance ratings and leadership evaluations. It’s important to note the demographics of the study’s participants didn’t affect the results; whether man or woman, Black or white (or other races), participants were more likely to attribute a Black woman expressing anger to her personality.
We conducted a second experiment to see if expressions of anger from Black women activated the angry Black woman stereotype in the minds of people observing her. We used a similar setup to the first experiment, however this time, we only looked at female employees since, in the first experiment, we did not find any effects with men.
In our second experiment, the sample included 253 adults working across industries in the United States. Participants were asked to imagine they were a sales representative at a marketing company, and that one day on the job, another employee at the same marketing company came to their desk to talk. Then, participants listened to one of four audio recordings from their coworker. The recordings portrayed either a Black actress or a white actress, and either anger was expressed, or it was not. We used audio clips instead of video clips to avoid any distractions, such as how the employee looks. The employee in the audio clip who approached the desk had either a traditionally Black name, Lakeisha, or a traditionally white name, Claire.
In the recording, either Claire or Lakeisha told participants she had seen them come into work late, and how she had mentioned many times before that their tardiness was unprofessional. In the recordings that included expressions of anger, Lakeisha or Claire expressed a stern and hostile tone, raised their voices, and sounded noticeably annoyed and indignant about the participant’s tardiness. These voice affectations were absent in the other recordings. After listening to the clip, participants answered questions about stereotypes, such as: Are Black women aggressive? They also answered a series of questions about attributions, performance evaluations and leadership capabilities.
In the second experiment, participants were more likely to attribute the Black female employee’s anger to internal characteristics (her personality) because the behavior brought to mind the stereotype of an angry Black woman. Once again, this reaction had negative consequences for the Black woman, leading to poorer performance evaluations and lower assessment of her leadership capabilities, even when controlling for the gender and race of the study’s participants.
Our research shows not all people are treated the same when it comes to expressing anger in the workplace, and people react more negatively to Black women who express anger because they activate the stereotype of an angry Black woman and internal attributions. Yet, there is little evidence suggesting that Black women actually are angrier than white women.
Organizations can take action to help their employees overcome the angry Black woman stereotype in the workplace. Here are a few tips to help identify, discuss and respond to this characterization.
Acknowledge the problem exists. It sounds simple to acknowledge the problem, but ignorance (either intentional or unintentional) can easily get in the way of being aware. Research from The George Washington University Law School has indicated once people are made aware of different biases and stereotypes, they are more likely to recognize them when it appears and are less likely to succumb to the influence of bias.
Most people want to hold a positive view of themselves (called the self-positivity bias), which could block them from seeing the stereotypes they hold. Efforts to bring awareness (such as training) could help curb discrimination.
Be empathetic. It’s powerful to put yourself in someone’s shoes. Another way to combat the angry Black woman stereotype is to self-reflect. Think about how we react, and most importantly, try to understand the experiences of our coworkers during the workday.
If an employee is angry, before jumping to a conclusion, ask why they are experiencing such strong emotions. Don’t simply rely on assumptions about their personality. Instead, ask, listen, learn, and then reflect. Also, think of a time when you were angry at work. How did people react, and how did you expect people to respond to your anger?
Be intentional. You don’t have to let the stereotype remain unchallenged. Think about your next steps to combat the angry Black woman stereotype. For example, getting to know the other person beyond their physical makeup makes a huge difference.
When working together in a team, appreciate everyone’s unique personality by creating meaningful social interactions, whether in the workplace (asking them how their day is going) or outside (suggesting they get a coffee together). This way, she isn’t “only a Black woman” anymore. Now, she is a trusted colleague and friend.
Ultimately, it’s important to also acknowledge the angry Black woman stereotype persists beyond the workplace, and it should be combated in other aspects of life. California State University professor Wendy Ashley notes it can influence the efficacy of mental health treatment for Black women. The stereotype can lead clinicians to misinterpret their symptoms, leading to misdiagnosis. Also, there’s evidence the angry Black woman stereotype is reinforced through cyber aggression, where Black women are targets of vicious and easily accessible messages on social media. Since this stereotype can yield its wrath in several facets of life — personal and organizational — the need to acknowledge the problem, be empathetic, and be intentional is important now more than ever.
Recent studies show that right now, women and people of color are at greater risk for depression and anxiety. Racial trauma at work shouldn’t be part of the equation, but it often is.
This year, a report came out saying that 54% of Black employees felt like they belonged at their companies for the first time while working from home. To me, that indicates that we have to talk about mental health as it pertains to marginalized groups in the workplace.
NO MORE DENIAL, NO MORE WALKING ON EGGSHELLS
I spent the majority of my career being the only Black woman. And when you are in a situation like that, you feel isolated. So, when someone says something to you that might be racialized, even though they might not have intended any harm, it still causes harm.
When I entered the workplace, my first manager saw that I had burnt orange fingernail polish on. He said in front of another colleague, “You people love your bright colors.” He went on to joke about Black people loving bright colors. I didn’t know what to say in that moment, and I honestly didn’t know if I could say anything, because I didn’t want the response to be, “Well, you took it the wrong way—I was just joking.”
After my manager said that, I no longer wore bright colors to the workplace, because he signaled that that wasn’t the type of authenticity that was welcomed in the office. So, I was always walking on eggshells, making sure that I wasn’t different. I didn’t say anything, and I tried to adhere to the status quo. People may tell you to bring your authentic self to work, but what they really mean is, “Bring the version of yourself that we’re most comfortable with.”
You can’t do the best work of your career under that type of constraint, so it’s important that we don’t deny or dismiss those who identify differently than us. While you may never experience racism or sexism or any other form of discrimination, somebody else might. So, what are we going to do to create psychological safety, ensuring that the workplace works for everybody?
FAITH, THERAPY, AND INTROSPECTION
I interviewed faith leaders from various traditions, from Buddhism to Islam to Christianity, about finding strength in God and addressing the stigma that can come with seeking help from a therapist. When I was growing up, there was a lot of stigma around seeking help outside of the Church. Now, we talk about therapy a little more in a normalized sense, because we know that therapy is a tool for mental health. It may not be a tool for everybody, but it’s one tool that we can use if we’re experiencing discrimination or workplace trauma.
Personally, I decided that I wanted to seek out therapy, and I talk about how God can heal you on a couch, too. There’s no one-size-fits-all approach to healing. And healing is not a one-time event—it’s a lifestyle.
THE AFFIRMATION PYRAMID
Another tool for dealing with trouble in the workplace is what I call the “affirmation pyramid.” If you are the only one like you, you don’t have anyone to affirm that that situation shouldn’t have taken place. So, you might start to question yourself, wondering if you made it all up—but at the end of the day, we all know when we’ve been disrespected.
There are five steps for using the affirmation pyramid:
- Pause: If somebody says something to you in an email or in person that is harmful, that you feel is racialized, take a moment. It’s okay to do that—you don’t have to pretend that nothing happened. We’ve been conditioned to sweep things under the rug, but it’s about time we put it on top of the rug so that we can get to equitable solutions.
- Acknowledge: When I was in my former life and something would happen, I would look for someone else to acknowledge that it was wrong. And when you’re not used to seeing accountability, it’s easy for people to dismiss it and say, “Well, I guess that’s just the way it is”—even if it hurts. But we can’t normalize bad behavior; we can acknowledge it ourselves.
- Document: You may not want to go tell your manager or go to a human resource department, but you can document the situation. If something has happened, or you find that meetings involve the most triggering racialized moments, go ahead and document that. That way, if at some point you decide that you do want to take it to HR or you do want to talk to your manager about it, you have it written down.
- Redistribute: It was very taxing for me to always be the only Black woman in the room. But instead of getting mad each time a racialized situation happens, I can choose how I want to use my energy—I can redistribute it into other places. It’s important to not let that energy marinate in your body, and cause you sickness or impede upon your mental health. You can redistribute that pain somewhere else, to a place that’s more positive.
- Affirm yourself: Sometimes, you are the only one, and nobody else is courageous enough to admit wrongdoing or hold someone else accountable. But you don’t need them to affirm you—you can affirm yourself. It’s up to us to tell the truth. And when we tell the truth, that creates a more equitable workplace, and we can have more accountability—at least to ourselves, if no one else.
The manager’s pledge
Oftentimes, people are promoted into manager positions, but they have no formal training on how to manage anyone. They have no conflict resolution skills. If they’re not comfortable talking about race, they choose not to, and they dismiss anything race-related. But we can no longer let managers or leaders opt into equity—it has to be mandatory. So I created a pledge that I hope all managers will commit to taking. Here are a few bullet points from it:
If every manager commits to equity, then we are one step closer to creating an equitable workplace that is not harming women, people of color, or any other marginalized group. Overall, I believe that we can make the workplace better than we found it.
- I will acknowledge that I have biases that I need to understand and reconcile.
- I will commit to engaging in courageous conversations. They might sometimes be difficult, but I know they are necessary to create an inclusive workplace.
- Even if I make a mistake, I commit to the daily practices of being a better manager who is committed to equity for all.
Most Nurses of Color Report Workplace Racism
In a new survey from the National Commission to Address Racism in Nursing, nurses of color reported discrimination from patients and their families, but also from their co-workers and supervisors.
The convenience-sampling-based survey was done in October 2021, and sent to American Nursing Association (ANA) members along with members of other nursing organizations.
Ultimately, 5,623 complete responses were analyzed. Most of the survey participants identified as either Black (37%) or white (37%), while 90% identified as female. A little over a third were ages 55 and older, with 40% reporting that they worked in acute care.
According to the results, 92% of Black nurses surveyed (n=1,972) reported that they had personally experienced racism in the workplace, as did 69% of Hispanic nurses (n=369), 73% of Asian nurses (n=461), and 74% of other or multiple races (n=531).
Among 3,523 respondents, 70% of Black nurses said they had experienced racism from a manager, supervisor, or administrator, as did 51% of Hispanic nurses, 57% of Asian nurses, and 60% of other or multiple races. Similarly, 41%, 26%, 34%, and 38%, respectively, said they had experienced racism from a physician or doctor.
In the survey, the commission defined racism as "assaults on the human spirit in the form of biases, prejudices, and an ideology of superiority which persistently causes moral suffering and perpetuates injustices and inequities."
The survey also revealed racism in nursing structures, such as training, promotions, and compensation, and this pattern may have manifested more in the results for Black nurses than other nurses of color, said ANA racism scholar-in-residence G. Rumay Alexander, EdD, RN, clinical professor at the University of North Carolina at Chapel Hill School of Nursing.
She pointed out that "there's been this decade upon decade upon decade of denial of those African-American nurses who went to the right schools, got the pedigree and the card and still were being denied the opportunity to move up; to be able to take advantage of positions that others had -- that somehow, even though they met all the criteria, they never got the jobs. And they kept absorbing and absorbing that."
Quotes from survey respondents included:
Over half the respondents said they had spoken up about racism in the workplace, but 65% said that it had resulted in no change. One nurse wrote that following an instance of racism, "An open discussion was held between nursing instructor and students. While this was positive, it resulted in no changes."
- "'I have been called the n word by multiple patients on multiple occasions. I have been asked to not care for a few patients by the patient themselves because I am Black.'"
- "'Nurses of color with the same credentials as their white counterparts are overlooked for recognition or promotions.'"
Alexander said that one way to combat workplace racism is to increase awareness of how racism manifests, and when. She compared the brain processing a racial stereotype to a window on a computer screen: "Minimize certainty, maximize curiosity. Curiosity means you ask questions. You validate and you do your cultural due diligence around who the person is, what they're about, what their capabilities are."
The nursing profession must also re-evaluate policies that disadvantage some nurses but not others, Alexander stressed. "We have to do the structural work, looking around the table and asking 'Who's missing? Whose voice haven't we heard?'" she stated. "Now, I know these sounds these things sound simple, but these are not things that just typically occur."
How do we normalize standing up against racism and bias at work?
All of us who witness racist behavior are bystanders. But it’s our choice as to whether we’re a passive bystander or an active bystander.
Passive bystanders are those who witness a behavior but do nothing about it. Active bystanders choose to act, challenging the remark or behavior in an attempt to prevent it from happening again. Being an active bystander is a crucial part of eliminating racism from our workplaces and society as a whole. By challenging racist behaviors and remarks, we send out a strong signal that this sort of behaviour won’t be tolerated. This then creates expectations about what is and isn’t ok. When we don’t challenge it, there’s a real danger that the behaviour becomes normalized.
Tips on how to be an active bystander
There are a variety of ways that bystanders can take an active stance against instances of racism and discrimination in the workplace. These actions vary in the level of involvement required for the bystander to intervene, giving them options for how to address these instances as and when they happen.
Broadly speaking, there are four types of intervention that active bystanders can choose to use:
When it comes to deciding which level of intervention is needed, always remember that some action is better than none when it comes to challenging discriminative behaviour in the workplace.
- Distraction: Since it isn’t possible to intervene directly in every instance of racism or bias, bystanders can choose to divert the subject as a way of cutting off the interaction.
- Delegation: Employees can report the instance to a colleague of higher authority, ensuring that action is being taken against the perpetrator without creating a more involved scenario around the racism or bias.
- Delay: Bystanders can choose to delay intervention until after the interaction is over, to avoid escalating the situation.
- Direct: Bystanders can intervene upon the situation directly with “I” statements that reflect their feelings about the interaction and can bring it to a close.
Challenge your thoughts
Challenging bias and becoming an active bystander in the workplace also involves internal work and personal reflection. Retraining internal dialogue around instances of racism in the workplace can make a significant difference to how employees react to their colleagues being mistreated – and can lead to faster and more frequent resolution.
In an environment where combating instances of racism has not yet been normalized, internal bystanders’ internal dialogue often follows the “Did I hear that correctly”? “Is there something I don’t know about their relationship?” “Did that person bring it upon themselves?” narrative. This is a damaging style of internal dialogue as it prevents the bystander from stepping in and taking a strategic form of intervention.
Confronting the person making racist comments or behaving in a biased way is the most likely way of achieving a feeling of resolution for both the bystander and the person on the receiving end of this bias.
The role of management in tackling racism
Of course, the responsibility doesn’t just fall on the active bystander in the moment. Senior management have a part to play in ensuring that intervention is an ingrained part of company culture.
Leaders should actively encourage their employees to be active bystanders by creating an open dialogue in which people feel safe to speak out. One of the ways they can achieve this is through a management tactic known as seed sowing.
In this case, seed sowing involves managers and other executive-level staff members discussing being an active bystander during internal meetings and within other internal communications.
Managers can even take this exercise a step further by asking employees to consider hypothetical situations e.g., what would our thoughts be if we saw this behaviour on the news – this kind of practice allows staff members to hone their skills of being an active bystander and understand their preferred methods of intervention. Staff in higher positions can work being an active bystander into the framework of their organisation’s policy and should communicate this to their wider teams.
Creating an active bystander environment and culture
As we work towards a more diverse and inclusive society in general, organizations have a responsibility to be aware of the interactions that occur between their staff members – especially if these interactions can be damaging or harmful to a person’s wellbeing or the wider company culture.
By incorporating active bystander practices into workplace policy, employers can ensure that all their staff are afforded the same opportunities and treatment in their work environment. It is crucial that all employees understand how to be an active bystander going forward, so that we can build a workforce that celebrates all ethnic, racial, and sexual backgrounds and orientations.
Combating Antisemitism in the Workplace
In January, an armed man entered Beth Israel synagogue in Colleyville, Texas, and held a rabbi and three worshippers hostage.
While law enforcement denied that the motive behind the attack was related to the victims' Jewish identity, hostage Jeffrey Cohen later told media outlets that their captor hurled antisemitic tropes, such as conspiracy theories about Jewish people, during the event.
This occurrence is a recent episode in a slew of antisemitic events in the U.S. over the past few years. One in 4 Jewish Americans say they have been a target of antisemitic behavior, such as a physical attack or a racial slur, according to a 2021 report by the American Jewish Committee.
These incidents happen in public, at schools and in the workplace.
"There has been a rising tide of hatred," said Andrea Lucas, a commissioner on the Equal Employment Opportunity Commission (EEOC). "Too often, instances of antisemitism in the workplace go ignored, unreported or unaddressed."
Examples of antisemitism in the workplace include firing, not hiring or paying someone less because the person is Jewish; assigning Jewish individuals to less-desirable work conditions; refusing to grant religious accommodations; and making anti-Jewish remarks.
The increased use of technology has led to antisemitic harassment via social media, Zoom meetings and companies' internal chat platforms. This toxicity can contribute to a culture of hate that leads to emotional distress or physical violence.
"Antisemitism, like other types of discrimination, can have a devasting impact on individual employees and the workplace as a whole," Lucas said. "Antisemitism has no place in our workplaces, schools or communities."
A combination of education and the implementation of policies against antisemitism and other forms of discrimination can suppress this trend and help to strengthen diversity, equity and inclusion (DE&I) programs.
What Employers Should Do
For EEOC Commissioner Keith E. Sonderling, antisemitism hits close to home.
"As the grandson of Holocaust survivors who suffered unspeakable discrimination because of their religion, I am keenly aware of the impact of antisemitism," Sonderling said. "Employers must be vigilant about the global rise of antisemitism to ensure it does not creep into the workplace."
Sonderling said it is incumbent upon business leaders to raise awareness and educate their workforce on the dangers of antisemitism. He outlined best practices to tackle antisemitism in the workplace:
Employers should carefully audit DE&I content and ensure that these efforts do not contribute to antisemitism through assumptions; stereotypes of power, privilege or racial identity; or conclusions based on racial or ethnic disparities.
- Speak up unequivocally in support of Jewish employees and against antisemitism.
- Consider forming voluntary faith-based employee resource groups, either interfaith or specifically for Jewish employees.
- Provide clear guidance about how to respond to inappropriate statements and postings on social media, including content involving antisemitism.
- Have a clear policy about religious accommodations, including whom to contact. Make sure you follow an interactive process and educate and train employees on this policy.
- Specifically address antisemitism in anti-harassment, anti-discrimination and diversity trainings, initiatives and policies.
They should also educate HR and DE&I personnel, managers and employees about antisemitism, including religious stereotypes and conspiracies. Individuals involved in DE&I initiatives should look inward to determine whether they are focusing too much on the collective, viewing employees as part of a category instead of as unique individuals.
"Diversity, equity and inclusion efforts can be tremendously wonderful if done correctly," Lucas said. "But if you are excluding Jews from that conversation, if you're ignoring the risks of engaging in antisemitic tropes, you can end up hurting the very people you thought you were helping."
What Workers Should Do
Sonderling said employees play a critical role in combating antisemitism. They should report misconduct to management or HR immediately if a worker experiences antisemitism or other forms of discrimination at work.
"It's really important now for not just those being subjected to discrimination but others who are seeing it and are aware of it to speak up, to go to HR and to help make sure not only is it stopping, but there are proper systems in place to prevent this from ever occurring," Sonderling said.
Employees can also file a charge with the EEOC if necessary.
"There are a lot of remedies for you if you've been discriminated against," said Sonderling. "The EEOC stands ready to investigate those claims."
Ageism in Recruitment
Recruiters and recruitment processes are often impacted by implicit biases that can make them subconsciously shy away from older and younger workers alike.
One study showed that a 50-year-old worker was up to three times less likely to get an interview than a 28-year-old applicant.
Younger workers are also at risk of losing out due to implicit bias.
Disfavoring certain groups puts companies at a disadvantage compared to more inclusive organizations.
Companies are increasingly seeking to cultivate more diverse and inclusive workplaces.
Typically, that effort is considered through the lens of race, ethnicity and gender, but age is also an important component of diversity and inclusion. Unfortunately, recruiters and recruitment processes are often impacted by implicit biases that can make them subconsciously shy away from older and younger workers alike, depending on the situation.
“Age discrimination means that over-50s are more than twice as likely as other workers to be unemployed for two years or longer if they lose their current job,” writes Sophia Epstein in an article for BBC Worklife. “One study showed that a 50-year-old worker was up to three times less likely to get an interview than a 28-year-old applicant.”
Disfavoring older workers is perhaps what comes to mind first when one thinks of age discrimination. But the unconscious bias around age cuts both ways. Younger workers are also at risk of losing out due to implicit bias. “It’s not just older job-seekers facing automatic rejection; young people can also be discounted for roles because of their age,” writes Epstein.
“Although this type of ‘reverse’ ageism is much less researched, studies show that younger workers can be considered undesirable employees, and that this can lead to them not getting hired.”
LEGAL AND PRACTICAL IMPLICATIONS
Discriminating against older workers is a violation of federal law. Discrimination doesn’t even need to be the intent of policies that favor younger workers over older workers. “An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age (RFOA),” says the EEOC’s Age Discrimination page.
While most people are probably more familiar with the federal prohibitions on discrimination against older workers, some states also have laws against reverse age discrimination, meaning discrimination against younger workers. Legal implications are perhaps the most immediate and concrete effects of age discrimination, but they are certainly not the only nor most impactful implications.
Any policy or practice that disproportionately disfavors certain groups puts companies at a disadvantage compared to more inclusive organizations, which consequently miss out on the insights, worldviews, and experiences of underrepresented demographics. In a follow-up post, we’ll discuss some tips and tricks for recruiters to avoid ageism from any end of the spectrum.
Wellpath to Pay $75,000 to Settle EEOC Religious Discrimination Case
Health Care Company Denied Religious Accommodation for a Correctional Nurse To Wear a Scrub Skirt, Federal Agency Charged
SAN ANTONIO, Texas – Tennessee-based Wellpath, LLC, a provider of health services in correctional facilities, will pay $75,000 and furnish significant equitable relief to settle a religious discrimination suit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.
According to the EEOC’s lawsuit, a nurse who is a practicing Apostolic Pentecostal Christian was hired by Wellpath to work in the GEO Central Texas Correctional Facility in downtown San Antonio. Before reporting to work, the nurse told a Wellpath human resources employee that her religious beliefs require her to dress modestly and to wear a scrub skirt instead of scrub pants while at work. In response, Wellpath denied the request for her religion-based accommodation and rescinded the nurse’s job offer. According to the suit, the nurse had worn a scrub skirt in other nursing jobs, including at a juvenile correctional facility.
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion and requires employers to reasonably accommodate an applicant's or employee's sincerely held religious beliefs unless it would pose an undue hardship. The EEOC filed suit, Civil Action No. 5:20-cv-1092, in U.S. District Court for the Western District of Texas, San Antonio Division, after first attempting to reach a pre-litigation settlement through its conciliation process.
The consent decree resolving the case provides the former employee with back pay and compensatory damages of $75,000. The decree also provides for injunctive relief, including anti-discrimination training and distribution of a notice informing employees of their rights.
“Under federal law, when a workplace rule conflicts with an employee’s sincerely held religious practice, an employer must attempt to find a workable solution,” said Philip Moss, trial attorney for the EEOC’s San Antonio Field Office. “This settlement should underscore the importance of employers taking affirmative steps to comply with their obligations under anti-discrimination laws.”
Regional Attorney Robert Canino added, “The EEOC is pleased that in addition to a monetary settlement, Wellpath has agreed to training human resources employee at its headquarters and certain managers throughout Texas on anti-discrimination laws and providing accommodations, including matters related to dress and grooming based on religion.”
Increase of AI in HR brings new litigation risks
Hiring teams leverage people analytics since it helps employers find the best talent and evaluates their recruiting methods. It also identifies personality types and characteristics that predict success over time for specific positions. Some companies use AI-powered facial scanning tools for remote interviews. These tools can predict a candidate’s fit for a position through analyzing speech patterns, expressions, and eye movements.
Some employers use an AI-powered gamification tool to pick and evaluate employees. One company used gamification for selecting call-center employees. They gathered data about successful employees—ones that not only succeeded at the job but also stayed. Using the data, this company developed a “game” that would test applicants and determine if they had the targeted characteristics. By using this new tool alone, this employer improved retention by 20% over four years.
HR departments are also using analytics for performance management, such as conducting employee evaluations; developing pay for performance metrics; ensuring employees are on the right career track; developing appropriate KPIs; and improving the quality of life for their employees. They are also using analytics for employee training by identifying KPIs through analysis of training effectiveness, increasing employee feedback, and improving employee engagement by using gamification concepts.
People analytics is also being used to improve employee retention. Some services allow employers to track employee patterns of conduct and sentient analysis of email to look for deviations presenting a risk of departure. Also, employers are using data analytics and AI to define correlations between resignations and factors like pay increases, training opportunities, promotion wait times, benefits, changes to management structure, and the effectiveness of the manager.
Some companies are also using predictive analytics to control health costs. These tools are used to determine the program effectiveness, look for gaps in coverage, control costs, and improve overall plan performance. For example, one data company works with self-insured companies. It mines employee medical claims and prescription data and gathers data from the employees’ social media and search queries. They combine this data, apply their algorithms, and predict the employer’s health care costs. It can also be used to predict where employers may see an increase in leave applications.
A major risk of all this, of course, is discrimination lawsuits. At their core, AI and analytics are supposed to be purely objective. But that’s not always the case. If an AI tool or predictive model is built using the profiles of past, successful employees, the tool will look for characteristics of those types of people. If these “successful” employees are not diverse, the tool will favor non-diverse candidates. By doing so, the tool may perpetuate prior discrimination or unfairness.
Because these tools are used so broadly by HR departments, their use could lead to more disparate-impact litigation. Disparate impact is a facially neutral policy that has a discriminatory impact on a protected category. A bias-influenced analytics tool could fit this definition perfectly. It’s applied broadly, it’s facially neutral, and it certainly could have a negative impact on protected classes. As more companies implement AI tools and predictive analytics, we will likely see an explosion of disparate-impact litigation. Also, there are many disability law implications for employers to consider. The use of gamification can disadvantage a disabled prospect or employee and the use of facial recognition tools present obvious ADA issues. The potential legal implications of these tools are substantial, and these risks will continue to develop, grow, and evolve over time.
What can be done right now to address these risks?
First, know that analytics and AI tools are not bias-free—these tools are not faceless paragons of objectivity. Because they are built by humans and are based on human characteristics, they are subject to all types of bias.
Second, understand the black box algorithms are complicated, like a black box. It’s hard to decipher what’s really running behind the scenes. Even so, you cannot assume that these tools are bias-free. You must understand what correlations are being used, how the tool was trained, and if/how the tool was tested.
Third, the computer should not be the final arbiter. AI and analytics can be very powerful and effective. But they do not replace independent judgment and common sense. They are a tool in the toolbox but far from the only one.
Fourth, be aware of employee privacy concerns. Just because you can gather (or buy) data does not mean that you should. Think of how your employees would feel if they knew how the company was analyzing their “personal” (but public) data. And think about how a jury would react to your efforts to collect and use employee data. Plus, the GDPR is coming to the United States whether we like it or not. This will change employees’ expectations regarding their individual privacy rights at work. The pandemic and the increase in telecommuting also have increased employees’ awareness or their privacy rights (or lack thereof) and triggered any employees to expect great privacy at work.
People analytics are not going away. They are powerful, effective and proven in many ways. But they are not a panacea against bias and prejudice—far from it. These tools can be very important for HR departments, but they present great risk as well. Counsel must understand these risks and anticipate the litigation that will surely follow.
Older job seekers face a record-high roadblock: Age discrimination
The Great Resignation is also becoming the Great Reshuffle, with many older Americans who may have retired earlier than planned because of the pandemic re-entering the workforce, or older retirees realizing their skills are in demand because of the talent shortage.
Decades of experience now trump a diploma, according to a survey by AARP.
It found 76% of employers surveyed prioritize skills over education attainment when hiring. That’s good news for older professionals.
“Older workers have those skills. They’ve been in the workforce a long time. Employers enjoy the soft skills that older workers have like professionalism, work ethic, management, leadership, problem solving, calm under pressure, all really important soft skills that employers tell us they really value in older workers,” said Susan Weinstock, AARP vice president of financial resilience programming.
But there is a red flag in the Great Reshuffle. While most professionals in their 50s and 60s may not consider themselves out-to-pasture age, AARP says many re-entering the job market or looking to advance are facing record-high age discrimination.
“Seventy-eight percent said that they had seen or experienced age discrimination in the workforce. That is the highest number we have ever seen, so it is really disturbing,” Weinstock said.
What constitutes age discrimination?
“They ask your age. Or they don’t even pick you up for an interview because they can see from your resume that you are an older worker from your graduation dates or work experience,” Weinstock said.
And some older job seekers are finding themselves being labeled with an unexpected, and misguided, mark against them: being told they are “overqualified.”
“We encourage workers to push back a little bit on that if they say that in an interview. Say I bring soft skills to the workplace that are very important, and would be beneficial to you, the employer. They shouldn’t be worried about being overqualified,” she said.
According to the U.S. Bureau of Labor Statistics, the percentage of jobseekers 55 and older who were long-term unemployed for six months or more increased to 42.8% in December.
AARP has several resources for older job seekers, including free resume help and a free jobs board where job seekers can filter through more than 1,200 companies that have committed to hiring older workers. It is also offering for free the Microsoft Office Suite, including Word, PowerPoint and Excel, available through its Skills Builder for Work.
Amazon Delivery Service Provider Fired Christian Employee After He Refused to Work Sundays Due to His Religious Beliefs, Federal Agency Charged
TAMPA – Tampa Bay Delivery Service, LLC, an Amazon delivery service provider in the Tampa Bay area, will pay $50,000 and furnish other relief to settle a religious discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission, the federal agency announced today.
According to the EEOC’s lawsuit, the employee requested to take off Sundays to attend church services. When Tampa Bay Delivery Service scheduled the employee for a Sunday shift, the employee reminded the dispatcher that he could not work on Sundays due to his religion. He was terminated when he failed to show up for the Sunday shift.
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion and requires employers to reasonably accommodate an applicant’s or employee’s sincerely held religious beliefs unless it would pose an undue hardship. The EEOC filed its lawsuit in U.S. District Court for the Middle District of Florida, Tampa Division (EEOC v. Tampa Bay Delivery Service, LLC, Civil Action No. 8:21-cv-02302), after first attempting to reach a pre-litigation settlement through its conciliation process.
The two-and-one-half-year consent decree resolving the EEOC’s lawsuit has been approved by the federal court. In addition to paying $50,000 in monetary relief, Tampa Bay Delivery Service will provide training on religious discrimination to ensure that managers and dispatchers are aware of their obligations to prevent workplace discrimination and how to address accommodation requests. The decree also requires Tampa Bay Delivery Service to designate a religious accommodation coordinator and post a notice.
'Ageism': The good, bad, humorous and ironic | For What it's Worth
We all need a sense of humor as we age through the third year of this once in a century pandemic.
Is "ageism” is an active social disease embedded into America’s soul in the 21st Century? The answer is "yes."
A definition and the meaning of ageism in 21st Century America:
“Ageism” refers to the generic term of “discrimination, prejudice, and stereotyping based on age." Age-based discrimination in employment, housing, and health care, lifestyles, relationships negatively affect every older adult’s individual health and well-being.
Americans over age 45 have seen or experienced “age discrimination” in the workplace.
Currently, 38% of Americans believe it’s common to see ageism on a regular or daily basis. This percentage of anti-social behavior of ageism will increase over time as America grows older. The average age of Americans in 2022 is 36 Years Old.
According to the AARP, there are 108.7 million Americans over the age of 50, with 76.4 million belonging to the Baby Boomer generation. Older adults represent over 30% of America's total population.
Older adults are experiencing the stigmas associated with ageism in their day-to-day lives, through interpersonal interactions and exposure to commonly-held ageist ideas, beliefs, assumptions and stereotypes.
These forms of everyday ageism may be increasingly harmful to the health of the country's older population, who have already borne the brunt of the coronavirus pandemic (due to the natural lowering of an individual’s immunity system due to age and health.)
Overall, 82% of older Americans report in 2022 that they experience at least one form of ageism in their day-to-day lives.
Recent academic polls found that Americans over age 45 have heard, seen or personally experienced “age discrimination” in the workplace and in everyday life.
Currently, 38% of those surveyed believe it’s common to see, feel and experience ageism on a regular basis in the United States.
Since the start of the pandemic, at least 2.5 million American workers ages 55 to 70 have permanently left the workforce. These staggering numbers assume some or all of these 2.5 million Americans desire, need and want to continue working for a living!
It is estimated that 31% of the world's workforce are working either partially or fully from home. Remote and hybrid workers make up 53% of the American workforce, and its predicted that America will continue to lead the world on that front.
Like other maladies of the human condition found in racism and in sexism, ageism refers to discrimination against a specific discriminated group based only on the individual/group age. It assumes that older, more knowledgeable and experienced employees are discriminated against in favor of the younger and less experienced employees.
Founding director of the National Institute of Aging Robert Butler coined the very term "aging" over 70 years ago in 1969!
According to Butler, ageism is visible at both an individual and institutional level.
It can include cresting wrong assumptions, stereotypes, dislikes, avoiding contact, and outright aversion at the workplace against employees who are more experienced and considered older.
Ageism can affect the health of older employees who are submitted to “stress-inducing, negative age stereotypes” that impact their mental and physical health and well-being on a constant basis.
Some of the most common myths and stereotypes of seniors face include resistance to technology, using more sick time in the workplace than younger employees, a lack of motivation, among others.
My personal computer revolution started in 1995 with the introduction of Microsoft's Windows 95 operating system and the revolutionary introduction of the “personal computer" in every home, office and every conceivable place in America.
My introduction to the modern hand-held revolutionary Blackberry Cell Phone including cellular email capacity began in 2003.
Now some 25-plus years later, with both the evolutionary/revolutionary adoption of virtual technology such as “apps” (applications) and the domination of worldwide social media has created the new reality of “Virtual Communication”.
If America’s Declaration of Independence was handwritten in pen and on paper in 1776, would it appear as a virtual document if re-drafted in 2022?
"Buddy, can you spare a job for older Americans" in 2022 for those who can/need/want to continue to work and live full lives?
The present economy requires full-time employees aged 55 and older who can, want and need to work to keep the present and post-COVID American economy competitive both at home and abroad.
What has happened to respecting and utilizing the knowledge, experience, and wisdom of America’s aging post 55 population?
“The secret of life is enjoying the passage of time”
— James Taylor
“Age is an issue of mind over matter. If you don't mind, it doesn't matter.”
— Mark Twain
Training addresses discriminatory workplace treatment against convicts
Prior convictions often unfairly hinder a person's chance of finding employment, especially if they are a minority.
Panelists discussed topics that were helpful to both employers and former offenders, known as restored citizens.
Blanket policies discouraged
Society loses out as a whole when people who are willing and able to work are not given that chance, said Marcel Baldwin, outreach and education coordinator for the EEOC office in Cleveland.
"One of our national priorities is eliminating barriers to recruitment and hiring," Baldwin said.
Most people might not realize how many people they know who have some sort of criminal record. The severity of those offences varies, as do the number of years since the dates of the charges.
"That's a roadblock in most instances," Baldwin said. "A person cannot get hired or they have a hard time getting hired."
Some managers might like a particular candidate, but are kept from hiring the person because of his or her history.
"We ask that they not have blanket policies saying they won’t hire any convicted felons," Baldwin said.
Instead, the EEOC encourages employers to consider the severity of the initial charge, the amount of time that has passed since the conviction and how that offense might relate to the position being sought.
Sometimes a crime should bar a person from employment — an example used during the seminar was that a pharmacist who was illegally prescribing medication probably should not be hired into a similar field.
Those who experience discrimination are encouraged to report it immediately.
'This is appalling'
There's nothing discriminatory about a potential employer obtaining a background check. There is an issue, though, with that information being used in an unfair way.
The first thing employers should keep in mind is records often are misreported in situations where two people have the same name, or there are family members who have similar names.
"Sometimes these criminal records are simply not accurate," Baldwin warned.
Data shows more people are obtaining criminal records each year. In 1991, only 1.8% of the nation's population had served time in prison. By 2007, 3.2% of adults had been jailed.
There were racial disparities in the numbers, too. Only 1-in-17 white men are expected to serve time in jail, but that number jumps to 1-in-6 for Hispanic men and 1-in-3 for African American men.
Workplace Diversity, Equity, Inclusion: Data Privacy and Security Issues
In the last decade, organizations of varied industries and sizes have heightened their focus on diversity, equity, and inclusion (DEI) initiatives and, since 2020, DEI has become a top priority. COVID-19 pandemic realities, racial and social justice movements, changes in federal, state, or local laws, and generational shifts have increasingly brought DEI to the forefront.
Now, more than ever, employees and customers are looking for thoughtful and impactful corporate response. Strong DEI performance is not only a business imperative. DEI is an organizational, leadership, and, increasingly, a legal and compliance imperative.
Many factors have created new risks that could devastate corporate reputations and severely damage brands. Examples include U.S. demographic changes resulting in significantly more diverse workforces, government agencies intensifying antidiscrimination enforcement efforts, and 24-hour global communications. While organizations are investing significant time and resources in enhancing their DEI initiatives, and some are developing comprehensive DEI strategic plans, often overlooked are the data privacy and security considerations involved.
What Personal Data is Collected under the “DEI” Umbrella?
An effective organizational DEI strategy relies on policies and practices that support DEI in all facets of employment, from recruiting and hiring, to onboarding and training, to development and promotion, and, ultimately, to the c-suite and the boardroom. During all phases, a comprehensive DEI strategy contemplates significant collection, use, transfer, and storage of personal information of employees and applicants. This includes data on ethnicity, race, and gender identity, as well as data about sexual orientation, disability, and veteran status, among other key identifiers.
For example, an organization might undergo a diversity assessment. Such an assessment might include, among other things, a legal vulnerability assessments or “diagnostic” assessment that examine internal complaint processes, employment discrimination/retaliation/harassment/hostile work environment claims, human resource policies and practices and workforce demographic trends.
While a complete discussion of such assessments is beyond the scope of this article, it is important to consider what types of DEI personal data will be collected and from where. Examples of this information may include information related to an employee or applicant’s race, gender, sexual orientation, national origin, and disability, among other personal information.
Antidiscrimination Law – DEI Data Collection Requirements
In addition to DEI data that an organization collects for business objectives, U.S. legislation and guidance requires or recommends the collection of certain types of DEI data. Here are just a few examples.
Similar obligations and recommendations exist in other parts of the globe. In the European Union (EU), while there is no direct legal duty for diversity reporting, the uniformly worded Article 11(1) of the Racial Equality Directive and Article 13(1) of the Employment Equality Directive put workplace monitoring to foster “equal treatment” first in their list of “exemplary measures,” the adoption of which should be considered by employers. They state as follows:
- Employers with 100 or more employees are required to submit an EEO-1 data report to the Equal Employment Opportunity Commission (EEOC) by March 31st of each year, collecting data on race and gender, to help the EEOC identify potential discriminatory employment practices. (The EEOC did not collect employer EEO-1 data in 2020 due to the COVID-19 pandemic.)
- While not required by law, the Uniform Guidelines on Employee Selection Procedures (UGESP) recommend gender and race data collection of applicants to ensure non-discriminatory hiring practices. The UGESP are considered by federal courts when assessing a discriminatory hiring claim under Title VII of the Civil Rights Act.
- The Federal Housing Finance Agency issued AB 2021-01 in March 2021, announcing standards for regulated entities (including federal home loan banks) on data collection relating to the diversity of boards of directors.
- Beginning March 2021, California’s SB 973 required covered employers (generally, those with more than 100 employees) to report data relating to employees during a single pay period from the previous calendar year. In addition to annual earnings and hours worked for these employees, reporting must include race, ethnicity, and sex across specified job categories.
Member States shall, in accordance with national traditions and practice, take adequate measures to promote the social dialogue between the two sides of industry with a view to fostering equal treatment, including through the monitoring of workplace practices, collective agreements, codes of conduct, research or exchange of experiences and good practices.
In addition, in many EU Member States, a special duty has been imposed on employers to collect data on the number of employees with disabilities for the purpose of demonstrating compliance with legally imposed quotas.
Privacy & Security Implications of DEI-Related Data
Privacy (and Data Transfer) Considerations
Privacy. While collection, use, transfer, and storage of personal employee and applicant data are key components of an effective DEI strategy and can be required by national antidiscrimination laws, there are privacy restrictions to consider.
The California Consumer Privacy Act (CCPA) took effect January 1, 2020, imposing a broad range of requirements regarding collection and processing of personal information of California residents. While employee personal information is exempt from most of the CCPA’s protections, one relevant area of privacy compliance remains: providing a notice at collection. Covered businesses are required to inform applicants and employees as to the categories of personal information they collect and the purposes for which it will be used. The CCPA was substantially amended in November 2020, when California voters passed California Privacy Rights Act (CPRA), including with respect to the notice-at-collection requirement for employees, job applicants, and independent contractors. The changes become effective January 1, 2023.
First, in addition to the information above, the notice at collection must include information on the retention periods for personal information.
Second, the CPRA expands the existing antidiscrimination rights of consumers to employees, applicants, and independent contractors. Section 1798.125 (a)(1)(E) states:
A business shall not discriminate against a consumer because the consumer exercised any of the consumer’s rights … including … retaliating against employee, application for employment, or independent contractor ….
In light of the expansion of this provision, employers now cannot discriminate or retaliate against employees, applicants, and independent contractors exercising their rights to: (i) receive a notice at collection concerning their personal information, and (ii) file a private right to action following a data breach involving their personal information caused by the failure of the employer to maintain reasonable safeguards.
The CPRA also added special protections for DEI data. The definition of personal information has been amended to add “sensitive personal information.” This new category includes a “consumer’s racial or ethnic origin, religious or philosophical beliefs, or union membership” and “a consumer’s sex life or sexual orientation” when used to uniquely identify the consumer. Consumers have the right under these changes to limit the use and disclosure of these and other categories of sensitive personal information.
For organizations operating outside the United States, the privacy implications of a DEI program will be considerably greater. Managing the interplay between federal, state, and local laws, together with laws outside the United States, may require tailoring the DEI program by jurisdiction.
Under the EU’s General Data Protection Regulation (GDPR), for example, processing (e.g., collection, storage, and use) personal data is bound by certain requirements and restrictions. The GDPR makes a clear distinction between the processing of personal data and sensitive personal data. Under the GDPR “special categories of data,” sensitive personal data is subject to heightened protections and, generally, much of the data collected in a DEI program qualifies as sensitive personal data.
Art. 9 of the GDPR:
Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.
The following exemptions under GDPR may be applicable for processing of DEI-related data:
While consent is considered a legal basis for processing sensitive personal data under the GDPR, EU Data Protection Authorities (DPAs) have stressed that the use of employee consent requires careful evaluation. The GDPR provides that consent must be “freely given, specific, informed and unambiguous.” Moreover, the GDPR adds, consent is not “freely given” where a “clear imbalance of power” between the data controller (i.e., employer) and the data subject (i.e., employee) exists. DPAs have questioned the employee’s ability to give valid consent because of their dependence on the employer. The inherent imbalance in the employment relationship calls “voluntary” consent into question.
- Art. 9(2)(a) – The explicit consent of the data subject (i.e., employee or applicant).
- Art. 9(2)(b) – Processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment.
An advisory board comprised of a representative from the DPAs of each EU member state, the European Data Supervisor, and the European Commission, called the Article 29 Working Party, has provided some guidance: “Employees can only give free consent in exceptional circumstances, when it will have no adverse consequences at all whether or not they give consent” and employees must have the right to withdraw consent at any time.
In addition, Article 7 of the GDPR warns against “bundling” consent with standard contract terms. The Working Party advises that Article 7 seeks to ensure the purpose of personal data processing is not disguised or bundled with the provision of a contract of a service for which these personal data are not necessary. Therefore, if an organization is using consent as a legal basis for processing personal data, consent provisions should be in a document separate from the general employee agreement to ensure consent is not associated with the employee’s acceptance of employment.
Further, nation states within the EU are permitted to impose additional conditions and limitations on the processing of sensitive data. For example, in Germany, LGBTQ+ data is subject to additional obligations within the employment context, and certain types of sensitive data can be processed only if done so anonymously.
In 2016, the European Commission released a revised edition of the European Handbook on Equality and Data to promote equality and contribute to fight discrimination in the EU by analyzing why and what kind of data should be collected in relation to equality and discrimination. Although the Handbook was published before the GDPR took effect, it discusses and takes into consideration GDPR data protection requirements. The Handbook acknowledges the complex interplay between antidiscrimination and data protection legislation, and the challenges in implementing a compliant DEI program as a result. The Handbook states:
The collection, processing and use of equality data is generally regulated by a combination of antidiscrimination and data protection legislation. As a consequence, there is no coherent approach in relation to the definitions, classification and categorization of data.
Moreover, the lack of uniform definitions and categories across the EU Member States creates inconsistencies. This is most evident with regard to the grounds of disability and racial/ethnic origin, where the approaches adopted are the most diverse.
Despite the complexities, the Handbook advises that, in the employment context, “diversity monitoring” is not “inherently problematic or challenging” and provides two options and guidance taking into consideration the GDPR, for legal and ethical diversity data collection: (1) collection of personal data associated with identifiable individuals or (2) anonymous workforce surveys.
If collecting personal data of identifiable individuals, the Handbook emphasizes that disclosure of such information must be voluntary and provides several best practices:
The Handbook notes that, unsurprisingly, collection of anonymous data has resulted in significantly higher response rates among the equality groups, especially among individuals with disabilities and LGBT+ individuals. Moreover, the Handbook recommends that anonymous data be processed where feasible to reduce the likelihood of misuse and improve voluntary participation. Nonetheless, the collection of anonymous data does not always serve the purpose of the DEI initiative, thus compelling the collection of identifiable individual data.
- Employers should explain clearly the purpose of monitoring (promotion of equal treatment);
- Employers should be able to guarantee the confidentiality of the data;
- Employers should act upon their findings;
- The monitoring form should be carefully designed;
- It should be concise so as not to pose a disproportionate burden;
- The questions should be formulated in clear language; and
- The form should be tested before use.
Data Transfer. In addition to privacy requirements for data processing, employers needing to transfer DEI personal data from European Economic Area (EEA) to the United States (or other countries the European Commission has determined do not have appropriate data protection safeguards) will need to consider how to do so through an adequate transfer mechanism.
Examples of data transfers within a DEI program include accessing a global DEI database from the United States or sending employee data from the EEA to U.S. headquarters. Until recently, many organizations relied on the EU-U.S. Privacy Shield program. However, in July 2020, the Court of Justice of the European Union (CJEU) declared the EU-U.S. Privacy Shield invalid in Data Protection Commissioner v. Facebook Ireland and Schrems (C-311/18) (Schrems II).
Alternative methods of transfer include mechanisms such as binding corporate rules (BCRs) for intragroup transfers or standard contractual clauses (SCCs) for intracompany transfers, as well as transfers to third parties. SCCs are clauses approved by the EU as providing reasonable safeguards to data transferred from the EEA. The CJEU did not invalidate either of these transfer mechanisms in Schrems II, but it placed SCCs under heightened scrutiny. The CJEU emphasized the data exporter’s obligation to verify the data importer’s ability to provide EEA data an adequate level of protection. The data exporter must review each transfer to determine on a case-by-case basis whether the SCCs provide sufficient reasonable safeguards, particularly in light of the recipient country’s surveillance laws. As a result, data exporters must review applicable local legislation for each transfer to identify when SCCs are adequate, whether supplemental protective measures are required, or whether the transfer cannot occur. A comparable analysis will apply to BCRs. On June 4, 2021, the EU Commission adopted long-awaited updated SCCs (replacing 2001, 2003, and 2010). The updated SCCs address more complex processing activities, the requirements of the GDPR, and the Schrems II decision. These clauses are modular so they can be tailored to the type of transfer.
Businesses seeking to find an alternative to the EU-U.S. Privacy Shield, BCRs, or SCCs should review whether a transfer may fall under one of several exceptions to the GDPR’s requirement of an adequate transfer mechanism. Many of these exceptions, however, apply only when the transfer is necessary, occasional, and affects a limited number of data subjects.
Under the GDPR, impermissible processing or transfer can result in assessment of fines up to €20 million or, in the case of an undertaking, up to four percent of the total worldwide annual turnover of the preceding financial year, whichever is higher. In addition, EU data subjects may bring a private cause of action against the data exporter for an illegal transfer, either individually or as part of a class action.
With data security incidents (e.g., mass data breaches and phishing scams of employee personal) on the rise in recent years, implementing reasonable security safeguards has never been more important. In response to such incidents, data security legislation continues to expand in the United States and abroad. However, in the United States, the laws requiring data security measures to protect personal information and notification in case of a breach typically extend to a narrow set of personal information that typically does not include traditional DEI data. Nonetheless, because of compelling privacy concerns relating to such data, along with the more expansive view of privacy and security in the EU and other jurisdictions, extending data security measures to include DEI data is prudent and may be mandatory.
The CCPA (discussed above in the privacy context) permits employees to commence a private right of action if affected by a data breach involving personal information caused by a failure of the employer to maintain reasonable safeguards. Effective in 2020, New York’s Stop Hacks and Improve Electronic Data Security Act (SHIELD Act) requires any business that owns or licenses the private information of New York residents to develop, implement, and maintain reasonable safeguards to protect the security, confidentiality, and integrity of the private information. These provisions do not apply to DEI data.
Still, there is good reasons to include DEI under the umbrella of an organization’s written information security program. Employees may be more likely to participate if they believe the company takes the security of their personal information seriously. A breach of such data could create unintended consequences, especially for organizations still developing their DEI programs.
Many organizations rely on consultants and other service providers to assist them with DEI program development, reporting, and consulting. Therefore, these services providers may store significant amounts of employee personal information, including DEI data. In this case, organizations should also assess the practices of those service providers and obtaining their written assurances to safeguard that data. For example, even if HR outsources certain processes involving DEI data to third-party vendors, it should ensure those vendors have reasonable safeguards in place.
For organizations that operate outside the United States, there are additional security obligations for protection of personal data to consider. Under the GDPR, for example, an organization that processes personal data “shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.”
While this rapidly developing area of the law presents compliance challenges, legislation generally does not mandate specific safeguards. Rather, legislation provides examples of practices that are considered reasonable administrative, technical, and physical safeguards based on the size and scope of the business. For example, practices considered reasonable administrative safeguards include risk assessments, employee training, selecting vendors capable of maintaining appropriate safeguards and implementing contractual obligations for those vendors, and disposal of private information within a reasonable time.
In the development of a DEI strategy, it is important for an organization to take stock of the DEI-related personal data being processed and where it is located and ensure there are reasonable safeguards in place to protect that data.
The balance between antidiscrimination laws and data privacy and security laws, and cultural considerations, is complex, requiring thoughtful planning.
Leadership & Goals:
- Who are the key individuals involved in developing, implementing, and maintaining the DEI program?
- Executives, HR departments, diversity leadership groups, legal, and IT are all potential stakeholders in a DEI program that may come with different agendas and priorities in mind. For example, an HR recruiting team may aim to capture as much data as possible, while the legal and IT teams may push for more limited collection. It will be important to define roles and responsibilities of those involved, early on.
- What are the goals of the DEI program, initiative, or strategy?
- The goals will significantly impact that type of data collected. Examples of common goals include increased productivity/creativity/decision-making, a larger job applicant pool, global impact, enhanced corporate reputation, ethical duty, prevention of legal liability, and development, inclusion, or retention of historically underrepresented populations.
- What data is being collected?
- Who will be responsible for collecting, using, transferring, storing and disposing of the data?
- Who will have access to the data?
- Is it mandatory or recommended by law/guidance to collect such data, as opposed to exclusively a business strategy?
- What is the legal basis for data processing? If consent is needed, how is the consent process facilitated? Who is responsible for the handling the consent process? Do the disclosures or consents mention DEI-related purposes? What if an employee/applicant refuses to consent? Can consent be revoked later?
- Will the type of data change over time? Has the organization already been collecting this data for other business purposes?
- For global organizations, will the type of data collected vary by location?
The development and implementation of a DEI program will vary greatly depending on the size, location, and goals of the organization. However, best practices for handling DEI data can be applied fairly universally.
- Culture and location. The cultural expectations and legal obligations regarding DEI data processing will vary significantly by location. In addition to antidiscrimination and data privacy and security laws, there may be other labor laws or social security laws that require or limit DEI data processing to consider. In addition to legal counsel, the DEI leadership team should maintain a keen awareness of relevant legislation and a general sense of where the law and culture is headed. Further, any DEI leadership team should always consider whether the audience (e.g., employees and customers) are primed to provide their data. A key consideration for any DEI-related data effort is determining whether there has been sufficient training, dialogue, or communication around what data is being sought and why it is being sought – to promote trust and respect throughout the process and maximize participation.
- Less is more. As with most forms of data collection within an organization, less often is more. Some organizations pride themselves on their comprehensive recordkeeping systems, for example, claiming to have retained all records since inception. Such practices may not be necessary and, in many cases, are not prudent. Retaining massive amounts of data may be needed in certain contexts, but it should be carried out strategically and deliberately, with a plan to shed the data once its usefulness has ceased.
- Notice and consent. As a starting point (to help ensure employee support for the DEI program and prevent legal liability), employees and job applicants should be provided clear notice of the categories of data collected and how the organization will use that data. If consent is the legal basis for collecting data, employees and applicants should be aware of this right, as well the process for how to consent and how to revoke consent if they choose. To ensure consent is not associated with the employee’s acceptance of employment, consent provisions should not be bundled with an employee handbook or general employment agreement.
- Written policies. Development and implementation of the DEI program should be in writing, and relevant personnel should be trained in its execution. Regarding data privacy and security, there should be a Written Information Security Program, including a risk assessment, in place for how all personal data is being handled within the organization, including DEI-related data. It is not enough to say, “We are doing that.” From a compliance perspective, data privacy and security policies and procedures need to be in writing. Additionally, written policies and procedures help to maintain consistency in the organization’s practices and better support discipline for violations of the rules.
- Be reasonable. Importantly, the steps taken should be reasonable. Indeed, most regulatory data privacy and security frameworks require “reasonable” safeguards. Of course, this is not easy to define, but reasonableness should be a fundamental principle guiding your program.
An effective DEI program protects the organization’s reputation and expands business opportunities by strengthening relationships with stockholders, customers, employees, regulators, and the general public. In the tumultuous times of 2020s, DEI initiatives have never been more important for organizational wellbeing. The interplay between privacy and antidiscrimination laws requires a comprehensive understanding of the issues and finding the right balance for the organization.
The Impact of Weight Discrimination on Your Health and Well-Being
Discrimination of any kind can harm your mental and physical well-being. Weight discrimination is particularly harmful because it’s still legal in most places. It can limit your job prospects, education, earnings, and social life.
And it does something more: Weight discrimination can harm your health.
This article explores the health effects of weight discrimination. It also provides some guidance about how to respond if you’re being targeted because of your weight.
Weight bias is a group of negative attitudes and judgments about people with obesity and higher body weights. Some experts also include people with disordered eating and very low body weight as well.
Weight bias is based on faulty beliefs like these:
In fact, weight gain can often be the result of a health condition, such as hypothyroidism or polycystic ovary syndrome (PCOS). Some medications can also cause unintentional weight gain.
- People gain weight because they don’t have enough self-discipline.
- People have excess weight because they don’t work hard or are lazy.
- People only have themselves to blame if they have obesity.
Weight discrimination is what happens when someone acts on weight bias. In short, it’s about treating people differently based on their body weight.
Because weight discrimination can limit your opportunities, it’s considered a social justice issue as well as a health issue.
Weight bias is pervasive. Traditional media and social media are instrumental in spreading it, and weight bias can be found in schools, workplaces, and even healthcare settings worldwide.
While many other types of bias and discrimination are slowly improving, weight discrimination has gotten worse, not better, researchers say.
When you’re treated differently at work because of your weight, it can show up in lots of different ways.
According to research, people with obesity are 37 times more likely to report workplace discrimination, while people with severe obesity were 100 times more likely to experience weight discrimination at work.
Examples of weight bias in the workplace include:
For many people, weight bias and discrimination mean that work does not feel like a safe space. The environment can feel unsupportive and even hostile.
According to 2020 research, only one U.S. state — Michigan — currently has laws to protect people against weight discrimination. A handful of cities and towns have put anti-discrimination laws in place to deal with the problem, including:
- not being hired for certain positions
- receiving more negative performance reviews
- being on the receiving end of derogatory comments
- earning less money for doing the same or similar work as others
- not being able to advance in the workplace at the same pace as your peers
- being penalized for weight through company health benefits or other programs
Some healthcare professionals have been trained to look at your weight as a sign of your overall health. Conversations about weight loss have been considered part of routine care.
- Binghamton, New York
- Madison, Wisconsin
- Santa Cruz, California
- San Francisco, California
- Urbana, Illinois
- Washington, D.C.
However well-intentioned these measures have been, the result is that some people feel stigmatized in healthcare settings.
Newer guidelines recommend a different perspective. Research from 2017Trusted Source published by the Centers for Disease Control and Prevention (CDC) recommends emphasizing physical activity for all people, regardless of their body mass index (BMI).
It’s important to understand that unfair treatment based on weight is associated with some very real health consequences.
You may avoid going to the doctor, even when you need care
People sometimes feel that their doctors and healthcare professionals treat them unfairly because of their weight.
According to a 2021 study, people who were overweight felt that weight stigma had affected how quickly and effectively they were treated and how much emotional support they received in the healthcare system.
If you think you’re going to experience bias or discrimination, you may avoid going to the doctor, even if you really need care. In that way, weight stigma may affect your access to quality healthcare.
You may not get quality care when you do go to the doctor
You’re not imagining it. In some healthcare settings, patients receive inferior care when they have obesity. Your healthcare professional may speak to you with less empathy and may spend less time educating you about health conditions.
In a research review spanning 17 years and 21 different studies, people with obesity said they had been treated with contempt and disrespect in healthcare facilities.
The study participants reported that their doctors often attributed their weight as being the cause of their symptoms, no matter what symptoms they reported.
In some cases, this disregard meant people didn’t get a correct diagnosis until much later.
If you feel like you’re not getting the care you need, you may want to consider looking for another healthcare professional.
You may develop some unhealthy coping mechanisms that have shown that people who feel stigmatized because of their weight tend to do more comfort-eating as a result.
Weight stigma has also been linked to more binge eating and eating more convenience foods.
Processed convenience foods have been linked to a higher risk of developing conditions such as:
- gastrointestinal conditions
- high blood pressure
- heart disease
You may experience the harmful effects of long-term stress
Stress is unavoidable — and, in fact, a little bit of stress here and there can actually be a good thing. But stress that goes on too long is as bad for your body as it is for your mind.
Researchers have found that people who experience weight discrimination have double the 10-year risk of high allostatic load. Allostatic load is the medical term for the pile-up of negative effects from chronic stress.
People with high allostatic loads have a greater risk of developing many types of health issues, including:
Negative ideas about weight can seep into your self-concept over time. Researchers refer to this problem as internalized weight bias.
Studies show that roughly 40 percent of people with overweight and obesity have internalized weight bias, devaluing themselves as a result.
A number of studies have linked internalized bias to mental health issues such as:
You may exercise less
A 2017 study involving close to 5,500 participants found that people who had experienced weight discrimination were about 30 percent less likely to engage in a robust physical activity once a week, regardless of their actual BMI.
Other studies have shown that weight stigma is associated with avoiding the gym and group exercise settings.
Some people develop coping strategies that allow them to exercise without being in group settings where traumatic stigmatizing events have happened to them. For example, exercising at home can be a safer environment, where there’s less risk of being a target of discrimination.
Those strategies are important, since exercise can lead to a wide range of health benefits.
You may have an increased risk of a lower life expectancy.
How damaging are the long-term effects of experiencing weight discrimination?
Researchers in a 2015 study found that living with weight stigma may be more harmful than obesity.
In the study, researchers analyzed the life spans of people in the Health and Retirement Study and the Midlife in the United States Study.
They found that people who experienced everyday discrimination based on their weight had a 60 percent higher risk of death in the time period they were studying.
This risk was independent of other factors such as a person’s BMI or tobacco use.
If you’re experiencing weight-related discrimination, the first thing to recognize is that it’s not your fault. As is true with other forms of discrimination, the problem lies with those who treat others unfairly — people who:
Experts say a top-down societal change is necessary.
- bully others in schools and on social media
- create hostile work environments
- shame and stigmatize, even in healthcare settings
Whether or not you decide to participate in that societal change, there are steps you can take to identify and change biases that may have crept into your self-concept over time.
In a 2019 study that explored internalized bias, people who experienced weight discrimination found the following strategies helpful:
- Create a counter-story. You can repair or replace the story you tell yourself about weight and weight bias. Some cultures pass down “master narratives“ about people with obesity. One such narrative is that people with obesity don’t get enough physical activity. Someone with a chronic health condition might replace that false narrative by focusing instead on their health journey. People who rewrite stories about their weight say it has helped them to “restore their identity” and “reframe their lives to create a healthier self.”
- Look for a supportive place to share your story. Some study participants were able to exchange stories and share photos and other objects tied to memories. Sharing enabled people to find meaning in their experiences and learn from what others had been through. Look for support groups, either in-person or online, where you can share your experiences with others who have had similar experiences.
- Recognize and resist stigmatizing messages. Media stereotypes and public health messaging around weight often contain bias. Messages that shame or blame are not healthy. You can learn to recognize, identify, and resist these messages. You can reframe damaging messages in ways that are kinder and truer. You may want to consider working with a therapist who has experience helping people who have obesity.
Weight bias and discrimination are harmful. When you’re treated differently because of your weight, it can raise your stress level and lead to poor health outcomes in the long run. You may also internalize negative weight-related beliefs in ways that end up damaging your mental and physical health.
- MyObesityTeam is a social network for people living with obesity. It offers emotional support, advice, and insights on managing treatments for obesity.
- The Obesity Action Coalition provides science-based education, tools, resources, and support for people with obesity.
- ObesityHelp offers support for people with obesity, as well as resources and advice for those who may be considering bariatric surgery or other surgical weight loss options.
- Obesity UK offers online community support groups as well as regional face-to-face support groups for people with obesity who live in the United Kingdom.
To protect your well-being, it’s important to learn to recognize unhealthy messages about weight — whether they are coming from within or from the world around you. You can help create a kinder narrative that supports your health journey.
Workers have few job protections during the trauma of a miscarriage
Miscarriage, which occurs in about a quarter of all pregnancies, is the most common form of loss of a pregnancy. And yet there are no national laws that mandate sick leave for workers, let alone specific protections for people dealing with a miscarriage.
The physical needs of someone who experiences a miscarriage vary greatly. Within the first week or two, symptoms may resemble a heavy menstrual period with cramping and some pain. The later in the pregnancy that a miscarriage occurs, the more likely there will be significant bleeding, "to the point where it leads to anemia in some cases," said Dr. Wael Salem, a reproductive endocrinologist and fertility specialist with CCRM San Francisco.
Some people have such heavy contractions they need pain management, he added. Miscarriages in the second trimester or later may require procedures needing hospital admission. The aftereffects are often unpredictable and can last for weeks or months.
"Miscarriage is not a one-and-done thing at all," Salem said. "It drags on physically, mentally and emotionally."
The emotional aspect "can be a very traumatic experience," noted Maria Brann, a professor of communications studies at Indiana University who has studied miscarriage for a decade. Some people blame themselves for the loss of their pregnancy even though the vast majority of early miscarriages are due to chromosomal abnormalities beyond people's control. Compounding the grief is the lack of established rituals that accompany other losses, as well as a stigma some people attach to miscarriage.
In the wake of such trauma, "it's very difficult to focus," Brann said. "An individual is probably not going to be as productive."
"It is really important that we encourage women to take care of themselves," Brann said. Otherwise, the grief won't be processed and it can "cause even greater mental anguish later on."
More people are speaking out about the experience of miscarriage, including high-profile women like Michelle Obama, Meghan Markle and actress Gabrielle Union.
But many workers find it difficult to get time off from work.
The federal Pregnancy Discrimination Act prohibits employers from treating workers who are pregnant, give birth or have related medical conditions — including miscarriage — worse than comparable co-workers. Courts, however, have interpreted that law differently, even after a 2015 Supreme Court decision decided in favor of a plaintiff who claimed pregnancy discrimination. Judges have dismissed two-thirds of cases in the aftermath, according to a review by A Better Balance, a national legal nonprofit promoting workplace rights.
Thirty states and five localities — including Colorado — have enacted laws that require employers to offer workers accommodations related to pregnancy, which can include time off to recover from a miscarriage. But outside those states, workers are protected only by the pregnancy act or the Americans with Disabilities Act, if a miscarriage is severe enough to substantially limit a "life activity."
Currently, 13 states, 20 cities and four counties, also including Colorado, have enacted laws requiring some employers to provide paid sick leave to workers for medical needs, which may provide relief for people suffering from the physical and mental health impacts of miscarriage. They don't require employees to say why they need the time off, other than perhaps producing a doctor's note.
"It's not putting the onus on the worker to have to reveal something that might be very personal and very sensitive," said Sarah Brafman, a senior policy counsel at A Better Balance.
Nine states and the District of Columbia have paid family leave programs, which can be used for more serious complications resulting from miscarriage. Elsewhere workers can take unpaid leave through the Family and Medical Leave Act if they qualify.
4 Documents that Will Make or Break an Employment Discrimination Case
Too often employees experience discrimination at work but lack the documents and other evidence necessary to prove they were treated differently due to their gender, age, race, or other protected characteristic. With this in mind, let’s highlight four types of documents that an employee should have access to, which can play a pivotal role in the outcome of their employment discrimination case. Talk with an employment discrimination lawyer for a more in-depth analysis.
Although the documents and information discussed below should be available to most employees, it is important not to access or take documents from an employer that may contain trade secrets, personal information about other employees, client lists, or otherwise proprietary/confidential information. Consult with an employment discrimination lawyer if you have questions about which documents may be considered “off limits.”
#1 Job Performance Evaluations
Many companies provide employees with an annual job performance evaluation in which they rate or describe the employee’s work and results. These appraisals can be extremely valuable evidence for an employee to counter the employer’s defenses in an employment discrimination case. In many situations, to explain the action a company took against an employee, such as denying a promotion, cutting their bonus or stock awards, or terminating their employment, the company will claim that it did so in response to the employee’s job performance problems. But if the employee can point to recent positive job performance review(s), this helps discredit the company’s explanation and demonstrates that the claim of poor performance is instead an after-the-fact pretext for discrimination. Similarly, any awards given to the employee by the company serve as a potent retort to claims of inadequate job performance.
#2 Emails, Texts, Slack Messages, etc.
One of the most ubiquitous—and powerful—pieces of evidence are contemporaneous emails (or texts and other types of messaging) regarding particular projects or workplace decisions that are at issue in the employment discrimination claim. Consider a scenario where the company claims it denied a promotion to the employee because they supposedly performed poorly on a specific proposal. If the employee has emails from their managers praising their work on the proposal in question, then the company will be hard-pressed to carry the day on its justification for why it denied the promotion. This in turn can help demonstrate that the employee’s age (or race, gender, etc.) was the true motivation for the company’s action.
Likewise, the pervasive use of email and texts can cause its users to “let their guard down” and occasionally say things in email that reveal their true mindset, which is indispensable in an employment discrimination case.
#3 Arbitration Agreement
While the arbitration agreement is not necessarily evidence, it does play a key role in determining whether your case will be heard in open court before a jury of your peers, or behind closed doors in private arbitration. There are pros and cons to arbitration that will be discussed in another article. And arbitrators do sometimes award large amounts to employees. As a general matter, however, arbitrators are less prone to award big verdicts to employees as compared to juries. Many large companies require employees to sign an arbitration agreement when they are hired or during their employment, and often the employee does not even remember signing the document. Review the arbitration agreement carefully to better understand precisely which claims must be arbitrated as certain agreements do not cover all employment claims and other claims, such as whistleblower retaliation under the Sarbanes-Oxley Act (SOX), are not subject to mandatory arbitration.
#4 Demographics Of, And Prior Lawsuits Against, The Company
Although demographics and prior lawsuits are not technically “documents,” this type of information can be critical background evidence in an employment discrimination case. Take the example of a glass ceiling/promotion discrimination case involving a senior vice president role. If the company lacks women in these senior roles, this can be relevant evidence in a promotion discrimination claim in both an intentional discrimination (disparate treatment) and unintentional discrimination (disparate impact) context. If 50% of the vice presidents are women yet only 10% of senior vice presidents are women, this evidence strongly supports an inference of discrimination.
Likewise, if the company has previously been the subject of promotion discrimination lawsuits this also can support the claim. Courts will look at a variety of factors to determine if the jury can hear this evidence, including whether it involved the same decision-makers, how recently it occurred, if a verdict was rendered, etc. This information is available in a variety of forums, including a simple Google query and searching court websites through services like Public Access to Court Electronic Records (Pacer).
During discovery, a much broader range of documents and information will be exchanged, but these four categories of documents should be available to an employee relatively early in the dispute and can go a long way toward deciding the fate of an employment discrimination case.
Ableist Attitudes: What They Are and Their Impact in the Workplace
When Josh Basile was 18, he and his family took a beach vacation. Basile grabbed his boogie board and headed into the pounding surf. A giant wave caught him by surprise, smashing him headfirst into the ocean floor. The incident crushed the fifth vertebrae below his skull, and Basile emerged from the ocean a quadriplegic, paralyzed from the shoulders down.
WHAT ARE ABLEIST ATTITUDES AND ABLEISM?
Ableists judge people with disabilities based on stereotypes, assumptions and the presumption that they are inferior to able-bodied people. Ableist attitudes create an environment in which people with disabilities are diminished and excluded, and can result in discrimination.
What Are Ableist Attitudes?
Ableists judge people based on assumptions and presume disabled people are inferior. They can act out of intentional cruelty or out of true ignorance about disabilities — including the fact that due to the unpredictability of life, anyone can become disabled at any time.
Before his accident, Basile had not known a single person with a disability. “I did not ‘get’ disability,” he said. If he did see someone on the street in a wheelchair, “I had a perspective of ‘I’m so sorry for that person,’” he said. Sympathy, a natural human emotion, can quickly feel patronizing to people with disabilities.
“Even something seemingly innocuous as speaking loudly to someone who is blind, or talking down to someone in a wheelchair, is ableist.”
Ableist attitudes extend to people with visible disabilities as well as invisible disabilities, for instance vision or hearing impairment. These disabilities become even more invisible in the age of digital workplaces. “You may be working every day with people who have disabilities,” said Ashley Eisenmenger, public relations coordinator at Chicago-based Access Living, a nonprofit that helps people with disabilities with housing challenges. “They use assistive technology, they use accommodations, and you don’t necessarily know” that they have a disability, said Eisenmenger, who is blind.
Ableist attitudes are also baked into federal and state legal and building codes as well as business policies and procedures, said Jarah Moesch, a lecturer in the department of science and technology studies at Rensselaer Polytechnic Institute in Troy, New York. “Ableism is ingrained in U.S. society, laws, customs, social practices, language,” Moesch said. “It takes a conscious effort (by the non-disabled) to continuously recognize and attempt to change and rectify.”
Ableism like racism, sexism, ageism and other -isms, excludes and diminishes an entire demographic. Ableism can be as blatant as having an office space that isn’t designed for people who are blind or use a wheelchair or planning an office outing that excludes everyone but athletic able-bodied employees, or developing a website that ignores accessibility standards.
DISCRIMINATION, DIRECT BIAS AND IMPLICIT BIAS AGAINST PEOPLE WITH DISABILITIES
Ableism can seep into our everyday language. These microaggressions include referring to something as “lame” or describing an oversight as “a blind spot” or an idea as “falling on deaf ears,” according to Access Living’s guide on ableism. Extreme examples of ableism include using the words “crippled” and “retarded” and “psycho,” asking upset people if they are “off their meds” and even telling people “I don’t even think of you as disabled.”
- Discrimination is the act of applying a bias to an action that violates a law, for instance the 1990 federal Americans with Disabilities Act, said Dr. Tracy Pearson, an expert in law, accountability, culture and implicit bias who serves as a legal analyst, researcher and consultant.
- Direct bias is a known belief that guides decisions and leads to discrimination, for instance not hiring a disabled person because of the belief that the person will underperform or prove costly to the organization.
- Implicit bias is an unknown belief that influences a person’s thinking without their awareness. One example is planning a group event that ignores the needs of people with mental or physical disabilities and makes participation impossible or uncomfortable for them.
- Another example: Criticizing an employee with PTSD or depression, both types of non-invisible disabilities, as “overly sensitive” for crying, while the tears might well be an anxiety response. Ruling out people with disabilities for promotions and being dismissive of people who ask for help can also be manifestations of implicit bias.
Ableism affects how others refer to people with disabilities, said Moesch. “Disabled people” is identity-first, while “people with disabilities” is person-first; one’s preference depends on the role disability has played in their lives, Moesch said. Some people, for instance many deaf and blind people, “don’t consider those to be impairments,” Moesch said. “For many folks, disability itself is located in society, not the individual.”
Sometimes, “‘disabled people’ is used by those whose world view, perspective and/or way of life is the way it is because of their disability — they wouldn’t be who they are otherwise,” Moesch said. As for “differently abled,” that’s a way to avoid using the word disabled. “That translates to disability being considered bad, which it isn’t. People who use this phrase either don’t know any better or they aren’t listening to people with disabilities/disabled people.”
The Effects of Ableist Attitudes
Eighty-two percent of people with disabilities are unemployed, even during labor shortages. Only 2 percent of the internet is fully accessible to people with disabilities. They are not taken seriously as consumers despite the fact that as a group, they possess $21 billion in discretionary income, according to data from the American Institutes for Research.
In 2020, disability discrimination formed the basis for more than one-third of charges filed with the Equal Employment Opportunity Commission. “We also know from empirical research that people with disabilities face lower performance expectations and bias in hiring decisions, but receive more positive performance evaluations,” said Dr. David Dwertmann, associate professor of management at Rutgers University. The effects differ somewhat by type of disability. For instance, people with mental disabilities face the lowest performance expectations and the biggest bias in hiring decisions, Dwertmann said.
Employers can and do harbor concerns about hiring people with disabilities. One fear is that customers will react negatively to people with disabilities in public-facing roles. Others: People with disabilities can’t fulfill certain tasks; that they will run up costs due to accommodations and healthcare costs; and that there aren’t high-quality candidates who are disabled. Fear of litigation, discomfort or unfamiliarity with disabilities, and attitudes from coworkers and supervisors also are among employer concerns, Dwertmann said, citing his own and colleagues’ research.
In the workplace, ableism ranges from organizing activities that not everyone can participate in to being passed over for promotions to being overlooked when it comes to office moves.
“There’s definitely work to be done,” said Jack Chen, a Harvard graduate and assistant general counsel at Meta, who became blind at age 16 following complications from an injury. “We don’t see open people with disabilities in leadership positions at our biggest corporations.” Chen said that he has, in many cases, not been advanced as quickly as his similarly situated counterparts. “Essentially, I was always kept busy, but I never found myself given the kinds of impactful and challenging projects that would set me up for advancement,” he said.
“Managers have rarely taken the time to truly understand my challenges and help advocate for challenges that would help me to be successful.”
Accessing online systems has been a challenge throughout his career, so he’s spent “an inordinate amount of time” working with engineers to make sure that systems work for people with disabilities. “This is work I must do in order to complete my work and to enable me to be productive on par with my sighted counterparts,” Chen said.
Finding ways to make systems accessible, however, takes away from his assigned work and is never part of his job description, Chen said. “It either takes away from other impactful work I could do or I spend time on my own, after hours, working on these initiatives,” he said. When Chen told one manager about the extra things, he needed to do just to perform his job, the manager told him it would hurt him in performance evaluations. “Managers have rarely taken the time to truly understand my challenges and help advocate for challenges that would help me to be successful,” Chen said.
Chen taught himself Braille days before taking the SAT. He gained admission to Harvard, and has worked at top-tier tech firms, including Google and now Meta. He launched Meta’s first disability-focused employee resource group in the legal department, the goal of which is to make Meta the premier workplace for people with disabilities.
Chen has encountered several common workplace misconceptions regarding people with disabilities. One: “We’re happy just to have a job at all,” he said. “The reality is that we want to advance, grow and achieve the highest level or leadership role in our organization.” Another is that disability gets in the way of accomplishing goals. “On the contrary, disability can help to drive greater results,” Chen said.
In a prior job, Tabitha Haly found her needs disregarded when her team was relocated to a basement from the first floor of a building. Haly, who has muscular dystrophy and uses a power wheelchair, asked her manager if they could walk through an emergency exit plan.
“Asking and then going through the tour brought forth so many moments of incredulous questions from the building manager, almost as if they were trying to make me feel bad,” said Haly, now vice president and a software engineer at JPMorgan Chase. The exit issues were resolved and Haly felt that she could be safe in a lower-level workspace.
Haly, who said she has felt discriminated against many times during her career before joining JPMorgan Chase, adds more workplace misconceptions: “That we are all the same,” she said, when in fact people with disabilities are like all people, each with unique qualities, and that disabled people enjoy or indulge in asking for accommodations. “It’s actually the opposite — people with a disability look forward to a time when barriers are not prominent,” she said.
Being perceived as contributing less in the workplace and the idea that “we give up or give in after encountering discrimination” is another common misconception, Haly added. “Personally, I get even more driven to help promote positive change after being treated as if I am inferior,” she said.
“People with disabilities have to prove themselves every day because they’re already at a disadvantage,” said Jim Sinocchi, head of disability inclusion at JPMorgan Chase. “Stigmas are dissolving, but they’re not going away as quickly as we’d all like,” he said. “As a quadriplegic, I speak from experience.”
Ableist Policies and Practices
The landmark Americans With Disabilities Act of 1990 prohibits discrimination based on disability. It also requires employers to provide reasonable accommodations for people with disabilities, and buildings and workspaces are supposed to be accessible.
Three decades later, however, only one-third of managers claim to know the details of the ADA’s legal requirements for accommodating people with disabilities, with an additional 36 percent saying they know “a good amount,” according to a 2020 report from tech HR company UKG. The report surveyed 1,000 managers at U.S. companies with 150-plus employees.
“Organizations as a whole still have a long way to go in creating more inclusive cultures in general, so there is much more work to do even for making our workplaces more accessible and welcoming to people with disabilities,” said Dr. Shirley Davis, president and CEO of SDS Global Enterprises, which specializes in HR strategy, talent management, culture transformation and DEI.
“Historically, we have been taught to not talk about people’s disabilities, and HR implicitly (and sometimes explicitly) made it company policy not to talk about it,” she said. “I am seeing that change. More companies are leaning into those ‘taboo’ topics, especially given the conversations about racial inequity, and the need for greater inclusion and belonging.”
Among the policies and practices that are ableist: Citing the ability to lift a certain weight in a job description when it’s not an essential function of the job; not labeling a restroom stall as “accessible” and allowing everyone to use it, rather than the people who need it; not giving a disabled person extra time to complete a task; or having an EEOC statement that doesn’t include a company’s commitment to hiring people with disabilities, Davis said.
CREATE AN EQUITABLE WORKPLACE FOR PEOPLE WITH DISABILITIES
“HR policies are typically vague or nonexistent for disability accommodation,” said Dr. Tracy Pearson, an expert in law, accountability, culture and implicit bias who serves as a legal analyst, researcher and consultant. “There are hurdles that employees must jump through to obtain accommodations,” she said.
- Rethink your company’s values and practices around productivity. What are the needs of your employees?
- Instead of having fixed start and end times for work, institute core hours that everyone is generally available for meetings to be scheduled.
- Start and end meetings on time, and provide breaks in longer meetings.
- Enable people to work as remotely/asynchronously as possible.
- In job descriptions: List its capacity for remote or asynchronous work; do not list requirements that aren’t absolutely necessary; provide alternate ways to apply, including a way to request American Sign Language; make forms and career pages accessible; and provide details about access to the workspace in the description.
For instance, when employees who needed to work from home because of disabilities asked to do so pre-pandemic, the answer generally was no, Pearson said. “When the abled employees’ health was jeopardized, working from home was a necessity,” she said. “Inclusion of employees with disabilities is just at the beginning,” she added.
Hiring processes that use AI to filter candidates can also be ableist, as “AI technology is only as good as those programming it,” Pearson said. “If the AI system hasn’t been accounted for and mitigated against implicit bias toward disabled employees, then disabled employees will be disparately impacted,” she said.
For instance, AI parameters might be set to flag resumes that show a disruption in employment, which might be the case for candidates with disabilities, especially given the pandemic, Pearson said. Parameters also might be set to reject applicants with the inability to lift 10 pounds, even though a person could perform the job with accommodations.
Companies can take solid steps to identify and repair ableist attitudes. “The first step is to recognize their own privilege,” Pearson said. “They need to try to experience the world through the eyes of a disabled employee trying to gain equal access to the workplace,” she said. Companies also need to identify their implicit biases and where those biases hide in policies and procedures, a process that requires special training, Pearson added.
Managers can survey employees to discover how a company can be inclusive. “Ask the staff through surveys, focus groups, exit interviews, and in one-on-one interviews how the company is doing in its treatment of people with disabilities or with diversity in general,” Davis said. She suggested reviewing complaint processes to identify trends and issues that might reveal opportunities to improve. “Ask experts who have extensive knowledge about how to best serve people with disabilities,” she said.
WHAT TECH CAN DO TO INCLUDE ALL
Policies, too, should be reviewed to ensure that they are inclusive of people with disabilities, that accessibility is considered, and that accommodations are available for those who need them, Davis said. Companies can provide education and skill-building about how to work effectively with people who have disabilities — and make sure that the training and education dispels myths and teaches appropriate terms and language. “What was used years ago has changed,” Davis said, pointing to the word “handicapped” as an archaic term and “neurodiverse” as a newer and acceptable term to refer to people whose brains process information differently. Company DEI vision statements should explicitly include people with disabilities, Davis said.
- Track progress. “It is incredibly important to be able to track our progress,” said Jack Chen, assistant general counsel at Meta. Companies run into trouble with legal requirements about what data can be collected about people with disabilities,” he said. Tech needs to find a framework that allows a better understanding of where it needs to progress, and track that progression. “Without data, we cannot do that effectively,“ he said. “This is the only diversity category that experiences blocks with data analytics.”
- Strive for accessibility by design, “not after the fact or done based on someone’s running into inaccessibility challenges.” Chen said. “If we don’t do this, we restrict people from entering into jobs in certain departments based on the online tools.”
- Hold vendors to rigorous standards. “Companies bring in a lot of vendor software,” Chen said. “However, it is difficult to understand the accessibility of that software ahead of time, and once the software has been onboarded, it is difficult to convince these companies to make accessibility changes. We as companies need to demand accessibility from our vendors.”
JP Morgan Chase formed an Office of Disability Inclusion in 2016 to make it an employer of choice, and a bank of choice, for people with disabilities, Sinocchi said. “Disability inclusion isn’t just a catchphrase — it’s a way of life and business imperative,” he said.
The office focuses on four areas: attitude, accessibility, accommodations (including a global tech team that evaluates internal and vendor-provided software applications for accessibility) and assimilation. Assimilation includes company initiatives such as Autism at Work, for neurodivergent people, and its Business Solutions Teams for people with intellectual and developmental disabilities.
The bank’s Access Accessibility Business Resource Group has 18,000 members — including allies and employees who are caregivers — around the globe. The group hosts events such as teaching American Sign Language or hosting panel discussions. Tabitha Haly belongs to the New York/Connecticut/New Jersey chapter. “Their presence at the firm, even externally representing the firm, provides great comfort and community,” Haly said.
“We face barriers every day that don’t even come across the radar of persons without disabilities. To be able to overcome those barriers strengthens our ability to acknowledge a problem and then find a solution. That’s such a powerful thing to bring to the workforce.”
Ten online Disability Inclusion Resource Guides, created in partnership with Cornell University’s Employment and Disability Institute, help JPMorgan Chase employees and managers foster an inclusive environment, for instance offering guidelines on how to effectively discuss assistive technology needs for employees. Sinocchi and his staff also lead live trainings for departments and teams. Sinocchi added that employees like Tabitha Haly lead by example, and regularly share stories about their lives with disabilities. “It’s become part of our culture,” he said.
Assistive Technology in Action
Eighty-five percent of the staff at IT consultancy Accessibility Partners, including the three founders, identify as having a disability. The founders, all disability advocates and tech professionals, launched the company in 2009 to make tech more accessible for people with disabilities. The tech spans all industries and has about 10 employees, said Sharon Rosenblatt, director of communications.
It is not difficult to spot ableist attitudes and take steps to fix them, Rosenblatt said. For instance, take note of how employees talk about and speak to other employees. “Even something seemingly innocuous as speaking loudly to someone who is blind, or talking down to someone in a wheelchair, is ableist,” she said.
So is making assumptions about a person’s ability or productivity (for instance, that a blind person can’t use the internet) based on their disability, worrying that people with disabilities might someday sue the company, or buying a one-size-fits-all tech solution, especially one that is largely visual or auditory.
Employees, all of whom work from home or a co-working space, use assistive equipment such as Siri talkback, refreshable Braille displays, screen readers that provide voice and Braille transcriptions of text on screens, magnifiers and ergonomic devices. “Assistive tech and accommodations are less expensive than you may think,” said Dana Marlowe, founder and principal partner. “They are ultimately productivity boosters, and shouldn’t be seen in any pejorative light,” she said. Assistive tools create an inclusive culture as all employees are performing the same function, regardless of the equipment they use.
And employees with disabilities, for their part, do much to create a vibrant, innovative workforce. “Persons with disabilities are incredible workers, they’re incredible contributors,” said Josh Basile of accessiBe.
“We face barriers every day that don’t even come across the radar of persons without disabilities,” Basile said. “To be able to overcome those barriers strengthens our ability to acknowledge a problem and then find a solution,” he said. “That’s such a powerful thing to bring to the workforce.”
Here are resources that can help transform an ableist culture into one that welcomes and includes people with disabilities.
- Americans with Disabilties Act (ADA), passed in 1990, guarantees rights for people with visible and invisible disabilities. The site offers tools and information for compliance with this groundbreaking federal legislation.
- The Campaign for Disability Employment champions the hiring of people with disabilities. Its “Who I Am” public service announcement campaign features nine people with disabilities sharing their personal stories, occupations and family relationships.
- Disability:IN, an organization that empowers employers to achieve disability inclusion and equality. Its annual Disability Equality Index, a collaboration with the nonprofit American Association of People with Disabilities, scores companies on their accessibility and provides benchmarks for improving workplace accessibility.
- Flexability is woman-, disability- and LGBTQ+ - led company that helps organizations implement all types of workplace equity.
- Job Accommodation Network (JAN) offers free and thorough information for all kinds of businesses on making the workplace accessible.
- Web Accessibility Initiative (WAI) promotes web accessibility, crucial as less than two percent of the global internet is accessible. The initiative offers Web Accessibility Content Guidelines and other information on how to make websites fully accessible.
Cyberbullying and other forms of harassment have caused a third of the U.S. workforce to join the Great Resignation
If you thought working from home would prevent harassment on the job, think again.
More than one-third (38%) of employees have experienced harassment through email, video conferencing, chat apps, or by phone, according to The 2021 State of Workplace Harassment.
The report was commissioned by AllVoices, an online platform for employees to report workplace harassment, and polled more than 800 full-time employees in the United States.
Although working from home has its benefits, it also diminishes open lines of communication between employers and employees. That reduces workers’ abilities to report cyberbullying, harassment, and discrimination. In fact, 24% of employees surveyed believe harassment continues or worsens on remote channels. That’s disconcerting considering that an estimated 36.2 million Americans will be working remotely by 2025, according to work marketplace Upwork.
Whether at home or in the office, employees need to feel comfortable reporting misconduct to the HR department or even their supervisors. It’s a major issue for employers, says Tom Miller, co-founder and CEO of ClearForce, a cyber and employee risk management company based in Vienna, Virginia.
“What we’re hearing from our customers is that they spent a lot of time initially setting up their employees’ ability to work, especially from a cybersecurity perspective,” Miller says. “But now it’s shifted from a technology standpoint to a people issue. Employers are having to figure out how to create a safer and more secure environment for their employees.”
Miller says there are two solutions that employers need to focus on: prevention and response.
First, the HR department needs to define what exactly harassment and cyberbullying are, giving examples of incidents and behaviors that won’t be tolerated. Then, the HR department should explain the process for reporting those incidents, making it as easy as possible for victims to contact the powers that be and explain what happened.
“Part of this underreporting issue is that employees just don’t know what to report,” Miller says. “Companies need to proactively communicate these policies to employees, as early as the onboarding process.”
According to The State of Workplace Harassment report, 50% of workers who experienced harassment did report it, with most selecting to report to their direct manager (55.3%) followed by HR (36.4%). However, 34% of employees have left a job due to unresolved harassment concerns.
In the past, some employees would stay and endure harassment out of financial necessity. But in this currently tight labor market, many employees realize they have options, says Haley Swenson, the deputy director at New America’s Better Life Lab, which researches sexual harassment.
“I think some people are feeling more empowered that if an organization isn't serving them and isn't sort of being proactive and letting them know that they take those kinds of concerns seriously, they might just be quitting toxic workplaces,” Swenson told Morning Brew. “They are feeling that it's too uphill to even take on the challenge of trying to address something like harassment within their workplace, so they quit.”
Obviously, no employer wants the reputation of having a toxic workplace, especially in such a competitive labor market. That’s why it’s vital for employers to ensure that employees feel heard when reporting such incidents. Although many companies have 1-800 hotlines for reporting harassment, Miller suggests that they’re simply not effective.
“Employees don’t believe the phone line is anonymous,” Miller says. “As a result, they’re not reporting issues. They’re not only concerned it will cause negative impacts for them, but they’re also worried their report won’t get to the right person and be handled in a consistent way without favoritism or bias.”
Employees should be encouraged to contact their supervisor or HR through email or over the phone, knowing that their conversation will be confidential and dealt with in a timely fashion. Miller also suggests introducing web-based apps that allow employees to anonymously report incidents. Of course, the caveat is that whoever receives those reports must act accordingly.
If even one report slips through the cracks, or information leaks to individuals who shouldn’t be part of the communication chain, employees will be less inclined to speak up.
“You have to create an element of trust,” Miller says. “It’s essential for employers to find opportunities to bring more channels of communication into this process.”