MARCH DIVERSITY, EQUITY, AND INCLUSION UPDATE
MARCH DIVERSITY, EQUITY, AND INCLUSION UPDATE
March 1st, 2022
Matt Glowacki, Diversity Equity & Inclusion Chair
Jefferson County HRMA & WI SHRM
EEOC Releases Analysis of Older Workers in the Federal Workforce
WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) today issued a report on workers age 40 and over in the federal workforce with details regarding pay disparities, the proportion of older workers on staff, complaints of age discrimination, and how this group compares to workers in the private sector.
The report by the EEOC’s Office of Federal Operations found that the federal government – the nation’s largest employer with about two million workers – generally outperforms the private sector in diversity for this cohort of workers. For example, employees 40 and over had greater representation in the federal sector (72%) than in the non-federal civilian labor force (CLF) (54%), and was more diverse -- most race and national origin groups were represented in the federal government at rates equal to or greater than the CLF.
Researchers found disparities in aspects of the federal workforce 40 and over: men were a greater percentage than women and pay gaps existed between women and men and among different race and national origin groups. Also, the report found that federal employees in this cohort on average earned more as they aged, with earnings peaking at the 65, suggesting that labor is not undervalued with age.
“It’s an established fact of life that more older Americans are working longer, and in larger numbers than ever before,” said Dexter Brooks, associate director of the EEOC’s Office of Federal Operations. “The fact that more mature workers are contributing their experience and talents to their employers is good for the country. It also means the EEOC must continue to be vigilant in protecting their rights, and it behooves us to track and analyze the situation of older employees in every sector to see what lessons may be learned.”
The study supports President Biden’s Executive Order on Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce, which calls for the federal workforce to be a model employer. The order includes “individuals who belong to communities that may face employment barriers based on older age” as a potentially underserved group needing attention.
For more information on age discrimination, please visit https://www.eeoc.gov/age-discrimination.
Survey: Age discrimination in hiring continues despite labor shortage
Every hiring professional knows it’s illegal to discriminate against a candidate based on their gender, race, religion or age.
But a recent survey revealed that a good number of hirers find themselves inadvertently engaging in age discrimination during the hiring process.
Here’s a breakdown of the surprising results of Resume Builder’s survey.
45% admit to bias
Out of the 800 hiring managers Resume Builder surveyed, 38% admitted to catching themselves taking age into consideration while reviewing applications.
Even more shockingly, 45% of hiring managers know of colleagues who are openly biased against applicants over a certain age. Only 44% of hirers say age doesn’t factor into their employment decisions at all.
While a lot of progress has been made regarding age discrimination in the workplace, there’s still a long way to go, as these results indicate.
It’s also not only older candidates hiring managers are wary of.
Old and young
Eighty percent of hirers reported having concerns with both those over 60 and those under 25.
What are the top concerns with older candidates?
Hiring managers biased against younger applicants had a different set of concerns:
- lack of experience with technology (37%)
- likelihood of retiring within a short period of time (37%), and
- may be resistant to change (34%).
Fighting unconscious bias
- likelihood of leaving job more quickly (40%)
- lack of job experience (38%), and
- unreliability (33%).
Age bias is often tricky to address, because so much of it is unconscious and based on preconceived notions.
So, what can HR pros do to help tackle unconscious age bias? The hiring managers themselves had some suggestions. Forty-one percent said that resumes including photos of the candidates or their graduation years made age bias more likely to occur.
Many hiring managers still want to see all the relevant experience, even if it spans decades (which hints at a candidate’s age) — but removing graduation dates can help fight unconscious age bias.
With the current talent shortage, employers are in no position to turn down great talent over a hiring manager’s age concerns. It’s a great idea for HR and upper management to make hirers aware of unconscious age bias and what they can do to prevent it.
Workplace Age Bias Hurts Early- And Late-Career Workers
"Societal beliefs make it easy to overlook ageism," says Dr. Michael North, assistant professor of Management and Organizations at New York University Stern School of Business. Dr. North, whose research is rooted in social psychology, focuses primarily on the challenges of, and considerations for, the aging and increasingly multigenerational workforce.
Unlike the U.K.'s Equality Act of 2010, which protects all ages from discrimination, the U.S. Age Discrimination in Employment Act of 1967 is meant to protect people age 40 and over. The reality, however, is that age bias happens across the age spectrum.
"If we're talking about ageism as a bias and the importance of raising awareness, then we shouldn't couch it as only an older issue because there is an equally valid argument at the younger end of the spectrum," he adds.
Age bias against younger workers is often overlooked because of the pervasive belief that some element of experience is required to warrant respect, status and resources and that time will eventually bring them what they want. But equating age with immaturity and inexperience is an example of age bias. Even requiring a minimum number of years of experience for a particular job could be indirectly discriminatory, especially if competency has been developed and clearly demonstrated in less time.
"When you are younger, people value your youthfulness and perceived vibrancy, but you're seen as sort of naive and inexperienced,” explains Dr. North. “Then you hit this sweet spot of middle age where you tend to make the most money, have the most influence and are portrayed in mainstream society."
Unfortunately, the sweet spot is temporary.
People overlook ageism against older people because it's seen as a natural progression where older workers are expected to leave quietly and make room for younger talent. Dr. North refers to this societal expectation as succession theory.
"I've argued in a lot of my work that this supposed natural progression—old making way for young—is very antiquated," says Dr. North. "Especially now that we have the largest older population in history, living longer than ever."
Since 2011, ten thousand people have turned 65 every day, a reality that will continue until 2030. In fact, there are as many people turning 80 as there are babies being born. Moreover, falling fertility rates mean nearly every country could have shrinking populations by the end of the century.
"It doesn't help when we talk about Boomers versus Millennials," Dr. North advises. "Framing generations in direct competition with one another exacerbates tensions. Minimizing these tensions is critical for healthy aging in an increasingly intergenerational workplace."
Company Strategies for an Aging Workforce
In a Harvard Business Review article co-authored with Hal Herschfield from the UCLA Anderson School of Management, Dr. North outlines four best practices for how companies can adapt to an increasingly age-diverse workforce. One example is including flexible retirement options for older workers who want to keep contributing but wouldn't mind reduced hours and pay. A Rand research study cites that nearly half of those who have left the workplace would be happy to return if the conditions were right.
"Another strategy is to prioritize older workers' skills in hiring and promotions. In other words, recognizing there are unique skills older workers bring to the table in their experience," Dr. North says. The HBR article showcases companies like Vodafone, Vita Needle, B&Q and Home Depot as valuing older workers' sense of loyalty, track records, competence, attention to detail and soft skills, such as conscientiousness, enthusiasm and customer rapport.
Considering all-aged talent is not just the right thing to do from an equity perspective; doing so also yields positive results. "Companies that make these changes have seen tangible improvements in retention and productivity, organizational culture, and the bottom line."
Results of a study on leveraging age diversity published in the Journal of Applied Psychology indicated that age diversity was positively associated with organizational performance by cultivating knowledge-based resources (i.e., human and social capital).
Another positive side-effect in proactively scouting and hiring all-aged talent is that the more companies show they value older workers, the less people will expect them to step aside. "That action on a mass scale could be the conduit through which antiquated societal beliefs about retirement and succession fade into new beliefs about equitable work opportunities throughout one's life."
If we're going to evolve from an antiquated, ageist model around age and aging at work, companies need to lead by example. Culture is reflected in the workplace and vice-versa. Change has to start somewhere.
An overdue shift in the modern inclusive workplace
As people live longer, and by necessity work longer, how can we ensure that workplaces are inclusive and accommodating to all workers' needs, regardless of their age?
"Many people cannot afford to leave the workforce at 65 years old and have a 35-year retirement."
25 years of professional experience have placed her at the vanguard of the Diversity, Equity, and Inclusion field. As Chief Diversity Officer for AARP, a NationSwell Institutional Member, Kane-Williams captains her company’s DEI strategy, oversees AARP’s Diversity, Equity, and Inclusion Advisory Council, and leads the company’s work addressing age discrimination.
NationSwell had the opportunity to interview Kane-Williams about why this moment is so pivotal for organizations striving towards equity and justice
Anthony Smith, VP of Published Content and Growth, NationSwell: Does the modern workplace have a generational equity problem?
Edna Kane-Williams, EVP and Chief Diversity Officer, AARP: There is a shift going on in the modern workplace, but I hate to label it as a problem — it is an opportunity. For the first time in history, we now have a five-generation workplace. We have our traditionalists or folks commonly known as the Silent Generation who were born in the ’40s, we have Baby Boomers who were born in the ’50s and early ’60s, we have generation X, we have Millennials, and we have Generation Z. A five-generation workplace can present challenges to employers and organizations, because it is a new phenomenon. Something new suggests the need for trainings, solutions, and approaches that workplaces have not used in the past.
NationSwell: What are some numbers, case studies, or examples that spell out that opportunity?
Kane-Williams: We learned in a survey conducted by the Organisation for Economic Cooperation and Development (OECD) that AARP participated in that 53% of employers do not include age as a factor in their diversity and inclusion policies. When thinking about diversity, equity, and inclusion, employers tend to focus on race, ethnicity, gender orientation, gender selection, sexual orientation, disability, and ability status, but they do not include age, even though 70% of the executives surveyed favored taking steps to promote unbiased recruitment practices. And when we talk about unbiased recruitment practices, certainly at AARP, we are focused on the older worker, but when you talk to Gen Z workers, they also face age-related challenges in the workplace. Two out of three executives surveyed said they would purposely design mixed-aged teams to leverage the advantages of both younger and older employees.
People used to retire at 60, 62, 65 years old, but now they are working longer, both out of choice and because people live longer. This is especially true for folks who are less privileged and from marginalized populations — Black and Brown folks, in particular — because many of them do not have a choice about retirement because they do not have the retirement savings accounts and safety nets in place that they need. With us living longer — into our 80s, 90s, in some cases, 100s — many people cannot afford to leave the workforce at 65 years old and have a 35-year retirement. Meaning 35 years of no income, no wages. So, as workers age, we need to make sure they can fully participate in the workplace. Across the board, we have to make sure all workers feel the workplace accommodates their needs, regardless of their age.
NationSwell: What are some concrete steps that organizational leaders can take to make sure that this unprecedented five-generation workplace is inclusive for every type of worker — old, young, and in between?
Kane-Williams: Training. I do not think we can assume people are going to come to the table with the skills they need. For both managers and team members, we need special trainings to ensure we are accommodating to people of all ages so they can thrive in a five-generation workplace. To do this, we can take some cues from the diversity, equity, and inclusion process. For example, microaggressions — you hear that term often in trainings and it typically applies to situations that involve race and ethnicity — there are microaggressions around age, as well. I’m the mother of three millennials, and if you talk to them, they feel like millennials encounter microaggressions around their age all the time in the workplace. People from other generations will say millennials are entitled and they do not want to work hard and find an easy way out. My children are offended by these generalizations and comments.
Older populations, people in my age range, also face stereotypes such as, not understanding technology, not on social media, and slow to adapt to change. All those beliefs are mired, whether you are younger or older, in stereotypes that have no business in the workplace. So the biggest thing employers need to invest in for a five-generation workplace is: One, trainings and two, protections — as we say in the Living, Learning and Earning Longer (LLEL) initiative, everyone ages so workplaces need to make sure people can be reskilled and upskilled.
NationSwell: How are workplaces getting age inclusion right?
Kane-Williams: The World Economic Forum, OECD, and AARP have partnered together for the LLELinitiative. Through LLEL, we have found the tremendous benefits of a multigenerational workforce as it strengthens companies’ resilience, increases productivity and GDP, and opens the doors for new markets and creativity. We also learned that a multigenerational workforce will raise capital by 19% over the next 3 decades speaking to the benefits of having Generation Z through the Silent Generation working side-by-side.
Over 50% of companies surveyed by OECD did not include age in their DEI statements. For workplaces to get age inclusion right they should: include age in their DEI policies, use trainings and mentorship opportunities to ensure people understand each other’s strengths and challenges, and provide upskilling and reskilling opportunities for their workers.
NationSwell: What is your call to action for the people who will read this profile and see this conversation about all of the opportunities the five-generation workplace has to offer?
Kane-Williams: One call to action I already alluded to is to provide work opportunities for people to remain and grow on the job. Another is to ensure individuals remain employable throughout their lives through continued education and training. Third, is to enforce policies that prevent age discrimination and adopt age-inclusive policies. More and more companies are embracing diversity, equity, and inclusion; we need to ensure that age is a part of the DEI spectrum that companies’ policies address. Those are three key areas that AARP focuses on when we talk about creating opportunities for all five generations to work together and to grow together in the workplace.
NationSwell: Is there anything else that I didn’t ask you about that you’d like to talk about?
Kane-Williams: At AARP, we focus on people ages 50 and older and often add “and their families” because we are committed to preventing age discrimination and preventing age stereotypes for all generations. We do not want generations competing with each other or over resources. Rather, AARP wants to take advantage of the extreme shifts we are experiencing in workplaces and workforces, the great resignation, and the great reshuffle and what the pandemic has meant in terms of working.
There is something extraordinary going on right now with intergenerational workforces and the workplace environment that we do not have a complete handle on yet, and it will compel all age groups and all interests to work collaboratively. It sounds ambitious but at AARP we want to lead the way on how five-generation workplaces can thrive.
How to prevent age discrimination: Don’t call your employees ‘dinobabies’
IBM is learning the hard way that mistreating employees due to their age is illegal
Age discrimination is when an applicant or employee is judged and mistreated due to their age.
According to the Equal Employment Opportunity Commission (EEOC), there were 14,183 age discrimination cases in the United States in 2020. IBM was one of those cases, according to a lawsuit filed on behalf of hundreds of workers.
A court filing claims executives of the Armonk, NY-based tech firm discussed in emails how to force out older workers, Bloomberg reported. The execs referred to them as “dinobabies” who should be made an “extinct species.” Company officials also complained about IBM’s “dated maternal workforce” that “must change.” They expressed frustration that the company had a much lower share of millennials in its workforce compared to competitors, adding that its share would increase following layoffs, according to the filing.
“IBM has engaged in egregious age discrimination,” said Shannon Liss-Riordan, partner at Boston-based law firm Lichten & Liss-Riordan, which specializes in labor, employment and class action. “IBM has tried to use arbitration clauses to shield that evidence from the public and other employees who are trying to build their cases of discrimination.”
An IBM spokesperson said in a statement that the company never engaged in systematic age discrimination and it terminated employees because of changing business conditions, not because of their age.
Even though the number of age discrimination cases in the U.S. has lowered compared to previous years due to the increase of diversity and inclusion in workplaces, there are still many instances that need to be addressed further. The Age Discrimination in Employment Act of 1967 (ADEA) protects workers from age discrimination.
Usually, an older employee or job applicant can be stereotyped as a liability to the company or harder to work with. They are seen as being resistant to change or to learn new skills, failing to understand technology, too highly compensated to retain and being complacent or unmotivated. Some younger job applicants may also experience ageism when they are perceived as inexperienced despite having proficient skills and expertise.
Discrimination Was Not Shown by Stray References to Age
A 56-year-old applicant for the head baseball coach position at Indiana University South Bend (IUSB) failed to show that he was not selected because of his age, despite interviewers' references to "retirement job" and selecting a "younger guy," the 7th U.S. Circuit Court of Appeals ruled.
In 2017, IUSB listed a job posting for a head baseball coach. The posting indicated that the primary duties and responsibilities for the position were overseeing recruiting efforts; enhancing academic success of student athletes; providing coaching, management and strategic planning; organizing and scheduling team practices; and overseeing and maintaining the program budget. There was also an annual fundraising expectation.
IUSB formed an eight-person hiring committee, which received 94 applications for the coaching position. The committee reviewed all applications and selected 11 candidates for phone interviews. The plaintiff was one of the 11 candidates selected for a phone interview. Another candidate selected was 31 years old at the time and was a friend and former collegiate teammate of one of the committee members.
Four members of the hiring committee interviewed the plaintiff by phone and were unimpressed by him. One of the interviewers specifically noted that it was one of the worst interviews he had ever experienced. Conversely, the 31-year-old applicant impressed members of the hiring committee during his phone interview.
The committee met to discuss the results of the 11 phone interviews, and the members unanimously agreed that the plaintiff would not be extended an in-person interview. Instead, the committee extended in-person interviews to five other candidates, including the 31-year-old applicant. After conducting the in-person interviews, the hiring committee unanimously agreed to recommend the 31-year-old applicant to the head of the committee, who made the final decision to hire him.
The plaintiff sued IUSB, the head of the hiring committee and another hiring committee member for age discrimination under the Age Discrimination in Employment Act and 42 U.S.C. §1983.
The evidence showed that, during the hiring process, one hiring committee member told his barber about IUSB's search for a new head baseball coach. On one occasion, he relayed that he was excited about hiring the applicant because he was a "younger guy and would be a better ﬁt for the kids" but did not specify his exact age. The barber believed that the committee member liked the applicant because the committee member knew him and coached with him.
In addition, during the phone interview stage, a committee member took notes on each candidate he interviewed. One of his comments next to the plaintiff's name read: "Looking for a retirement job." The plaintiff believed that this note showed that the committee was conscious of his age.
The defendants moved for summary judgment on the claims, which the district court granted.
On appeal, the plaintiff argued to the 7th Circuit that the district court had impermissibly weighed his two pieces of evidence of age-based animus. In considering the first piece of evidence, the 7th Circuit determined that the district court correctly concluded that the committee member's comment to his barber that they had hired the "younger guy" was merely a description of the candidate, and could not reasonably be construed as a description of the reason he was hired. As such, it was at best a stray remark of someone who was not the sole decision-maker.
The court then considered the second piece of evidence of age discrimination and found that the plaintiff's interpretation of one member's interview notes was speculative. The hiring committee members all stated under oath that they did not use age as a factor in the hiring decision. There was not any evidence showing that the committee member shared his notes with other members of the hiring committee. In addition, the member had other interview notes concerning the plaintiff's lack of any plan to deal with professors or to develop the students, which showed that the plaintiff had performed poorly during the interview.
The 7th Circuit upheld the district court's dismissal of the claims at summary judgment.
Discrimination: It Exists In Your Workplace
Every leader wants the best team, and good leaders want the best for their teams. In most cases, the difference between these two kinds is evident but the one factor common to both is that neither is unbiased.
The beginning of a new year for a media company usually implies revisiting a host of annual activities that must don new and improved avatars to be future-fit for at least one more round. As we do this exercise, several discussions happen, and inadvertently the traits that make good leaders, promising future captains, team builders, company creators, trendsetters and the like are tabled.
Businesses are only as good as the people that drive them. Hence, people must be celebrated. But the more we understand this, the more we are faced with the vulnerability of this truth. Human behaviour comes with doggedness.
Don’t go by statements such as he is hard headed or she is combative. When it comes to things that matter, everyone is stubborn. People come to believe in little truths of life, inculcated directly or indirectly into their ideologies over time. Driven by that long term training, people’s response mechanisms to change, vary. Some retaliate and refuse to budge, while some bide time to come back, with perhaps even more force. A disagreement will always find a way to boomerang.
On the bright side, it could be seen as a healthy and equal exchange of ideas. But on the flip side, it will manifest into that inflexible boss or colleague, whose very thought process may seem counterintuitive. The point here is that it is this set of individuals that become the collective that runs a business.
When, by definition, habit and culture is this deeply rooted, how can anyone claim to be unbiased? True, that is the very quality needed to bring decadal changes or to break the monotone but the removal of bias is an impossible ask. It is not going to happen, and the wise do not insist on it.
Instead, it should be accepted and addressed. Over the years, different ways have been created for leaders and people to address bias at work.
Some bring in systems and processes that will compel the need to think differently. Some structures force diversity that can challenge instinctive decisions and force people to rethink and take one more look. More evolved setups take the pressure off the outcome and shine the lens on the process of reaching that outcome.
Understanding the need, and putting in the laws and systems, for diversity and inclusion have been around for over five decades. We continue to lag. There is progress, of course. It is fast and it is big but it is not fast enough or big enough to be dubbed as equality.
Everyone is subjected to discrimination at work every day. It can be gender, age, race or it could be the way people think, live or their lifestyles. It could be just about anything that makes a person different. People may have to deal with it in office or interactions with partners or external stakeholders.
Pushing for change is everyone’s responsibility. And knowing how to work around the current realities is prudence. For employees, choosing the workplace well is critical. Companies that have similar looking people constructs, or pride in their processes more than their people, or misunderstand their arrogance for self-confidence, or use the no-fix-needed-if-ain’t-broken approach as a principle, or eerily look like people factories — are all avoidable.
As for leaders, if even one of these describes their teams or their company, then it is the alarm bell for change. Because if they don’t, they will become the data point of the surveys that show how leaders’ tenures or company’s success periods are becoming shorter-lived.
Employment discrimination: what you need to know
Here's how you can avoid it happening in your workplace
Employment discrimination can happen anytime without employers realizing it unfolding – even with all the news of discrimination happening worldwide. Therefore, it’s the responsibility of companies to know how to spot discrimination in the workplace and what to do to mitigate the situation.
What is employment discrimination?
Employment discrimination happens when an employee or manager treats someone less favorably or unequally based on their personal characteristic or background. This includes sex, race, age, disability, religion, nationality, and sexual orientation. Discrimination can happen to anyone in the workforce and even as early as during the job application process. Common discrimination practices include refusing to hire, biased promotions, harassment, bullying, unjust termination, and unfair workplace treatment.
The primary law protecting employees against discrimination is the Title VII of the Civil Rights Act of 1964. Just as it is illegal to discriminate against someone based on their characteristic, it’s also illegal for companies and managers to retaliate or punish someone who complained about employment discrimination.
The US Equal Employment Opportunity Commission (EEOC) enforces federal laws to protect employees and other US workers from workplace discrimination. The EEOC has the right to investigate any discrimination case filed against an employee or company.
Types of employment discrimination
Employment discrimination can come in different forms, targeting various aspects of a colleague. Becoming aware of the different types can help companies and leaders recognize possible workplace discrimination.
Listed below are some of the common types of employment discrimination:
1. Age discrimination
Age discrimination is when an applicant or employee is judged and mistreated due to their age. According to the EEOC, there have been 14,183 age discrimination cases in the US in 2020. Even though the number of cases has lowered compared to previous years due to the increase of diversity and inclusion in workplaces, there are still many instances that need to be addressed further. The Age Discrimination in Employment Act of 1967 (ADEA) protects workers from age discrimination.
Usually, an older employee or job applicant can be stereotyped as a liability to the company or harder to work with. They are seen as being resistant to change or to learn new skills, failing to understand technology, too highly compensated to retain, and being complacent or unmotivated.
Aside from this, age discrimination can happen for all ages. For example, some younger job applicants experience ageism when they are perceived as inexperienced despite having proficient skills and expertise.
2. Disability discrimination
Disability discrimination is when an employee or manager treats a co-worker unfairly due to their disability. Disability discrimination also happens when an employee is being mistreated due to having a history of a disability such as major depressive episodes or believed to have a physical or mental disability. In addition, employees who are being discriminated due to having a relationship with a disabled person can be grounds for disability discrimination.
Under the Americans with Disabilities Act, employers are required to provide reasonable accommodation for employees and job applicants with a disability as to provide equal and fair opportunities for them to work. The same goes for the Rehabilitation Act of 1973, which governs federal employees and applicants.
During the hiring process, employers are generally only allowed to ask disability-related questions or require a medical exam as proof for the employer to accommodate any request made by the employee for their disability or if the employer thinks the employee can’t perform the job properly or safely.
3. National origin discrimination
Regarding nationality discrimination, the Immigration Reform and Control Act of 1986 (IRCA) governs equal opportunities in hiring, firing, or recruitment for employees. The law prohibits companies from hiring only US citizens unless required to do so by law. The IRCA’s law is enforced by the Department of Justice Civil Rights Division’s Immigrant and Employee Rights Section (IER).
Discrimination based on nationality is when companies and employers deny equal opportunities for an employee that is from a different country or ethnicity. It can also happen based on someone’s accent or assumed as someone from a diverse ethnic background. Just like disability discrimination, an employee who is associated with someone from a particular national origin or ethnicity could be discriminated in the workplace.
4. Racial discrimination
Race discrimination focuses on inequality based on a person’s particular race or has physical characteristics associated with a specific race. Prejudice solely based on a co-worker’s skin color or complexion – regardless of their race – is the most common racial discrimination as it quickly judges someone based on their external attributes.
The Title VII of the Civil Rights Act of 1964 protects employees against racial discrimination and also protects them against retaliation for reporting bias and discrimination in the workplace.
5. Religious discrimination
Discrimination can happen based on an employee’s religion or moral beliefs. Employers are responsible for making reasonable accommodations to cater to different faiths, such as honoring any religious holidays, observances, or practices, unless the accommodation would cause undue hardship on the employer.
The Title VII of the Civil Rights Act of 1964 protects employees against religious discrimination against the employee themselves or against their relationship with someone belonging to a specific religious group.
6. Sex-based discrimination
Sex discrimination happens when an employee is being treated poorly and unfairly based on their sex. This includes an employee’s gender, sexual orientation, gender identity, and pregnancy.
There are other laws protecting employees from sex-based discrimination aside from the Title VII of the Civil Rights Act of 1964. The Equal Pay Act of 1963 (EPA) protects employees from unjust sex-based wage discrimination between men and women despite equal work and responsibilities. Meanwhile, the Pregnancy Discrimination Act is an amendment to Title VII that prohibits discrimination against pregnancy, childbirth, and a medical condition related to childbirth.
How employers can deal with discrimination in the workplace?
Discrimination can significantly affect the workplace environment – causing low productivity, employee engagement, and trust within the organization. Although companies cannot entirely prevent employee discrimination, there are ways employers can prevent and deal with employment discrimination.
When a discrimination complaint has been filed, the best action employers can take is to treat the complaint with respect and not to retaliate. Filing a complaint against a co-worker, no matter the ranking, is a challenging action to take as it can affect work relationships, reputations, and their work. Treating a case with proper seriousness and compassion can show how the company cares for equality, employees’ safety, and workforce wellness. Retaliating against the complainant is illegal and could damage the morale and trust of the workforce with the company.
Having anti-discrimination policies in place could help companies avoid any discrimination in the long run. The policies should be clear on what falls as discrimination and what actions the company will take to prevent miscommunication. It is best to have these policies listed in detail in the employee handbook and employment contracts.
Aside from that, keeping employees and employers alike educated and updated on discrimination in the workplace can help promote equality and ensure that every person in the company is doing their part in preventing workplace discrimination. Sending emails and meetings on policy updates and holding seminars on workplace discrimination are a few simple ways to educate employees on the matter.
Lastly, holding the wrongdoers responsible for workplace discrimination by taking appropriate action should be necessary for companies to fulfill their responsibility in creating a safe and inclusive workplace environment. Companies need to cooperate with government agencies like the EEOC to review and investigate any discrimination cases and decide on the proper punishment for the accused – which could be warnings, counseling, or termination depending on the severity of the discrimination. Once an action has been decided, employers should document it and implement it as soon as possible.
Companies should not be afraid of taking action against discrimination, whether it was formally reported or just an informal complaint by an employee. While it may be challenging to settle any reports in the workplace, dealing with it head-on can help set an example for co-workers and motivate them to do their part when it comes to any discrimination and harassment against their colleagues.
Social determinants are where employers' health investments fall short, report says
Far from an undiscussed topic in the employee benefits space, social determinants of health have long been recognized by consultants and employer advocates as potential contributors to workers' health and well-being struggles despite increased investment in benefits.
- Though employers have invested increasingly in a variety of healthcare and healthcare-adjacent benefits, few of these efforts effectively address social determinants of health that can negatively affect patient outcomes, according to a report published this month by the Northeast Business Group on Health.
- Social determinants of health include factors such as education access and quality; healthcare access and quality; economic stability; neighborhood and built environment; and social and community factors. Differences in these areas lead to disparities not only in terms of health outcomes, but also in cost management and general employee health and well-being, NEBGH said.
- Employers can start addressing social determinants by collecting survey data on employees' needs and risk factors, per the report. From there, NEBGH recommended that benefits design focus on equitable benefits access, such as evaluating what percentage of pay their health plans comprise at different pay levels. Other strategies cited include improving health literacy, taking advantage of partnerships and improving organizational culture around health and well-being, among others.
In addition to the categories highlighted in NEBGH's report, social determinants may include aspects such as income and ethnicity. Sometimes these broad issues directly impact health; one source previously told HR Dive that racism and gender discrimination rates contribute to higher rates of stress-induced chronic illnesses in Black women, for example.
Employers may be able to see health and well-being disparities exacerbated by social determinants play out between employees with the same health condition. NBEGH gave the example of two employees with Type 2 diabetes, one of whom lives in a food desert with limited access to fresh fruits and vegetables, and another of whom lives in an affluent suburb with easy access to grocery stores and farmers' markets. The latter worker "is more likely to have good glucose control, avoid severe complications and live a longer life," NEBGH said.
The report outlines several potential solutions. In the above scenario, employers might offer healthy, affordable meals at an on-site cafeteria or a subsidy for in-person or online markets and food delivery services. In a 2020 guide, NEBGH recommended that employers consider providing transportation services or reimbursement for public transit that diabetic, low-income workers use to attend care appointments.
A focus on health equity can be one aspect of an employer's larger diversity, equity and inclusion efforts, but part of the problem has been accessing to diverse groups of care providers. That has led to a push from both employers and vendors to seek culturally competent care, or providers who are able to treat diverse populations and their particular needs.
Why does gender bias and discrimination exist in the workplace?
SHP speaks to eight health & safety professionals to learn their views on why gender bias exists and hears some of their personal stories and experiences.
Whether conscious or unconscious, it’s clear that some form of gender bias exists in most organisations, in one form or another. Often based on prejudices and stereotypes, gender bias refers to a preference for one gender over another, leading to people being treated unfairly.
This interview has been split into three parts. Below, in part one, we’re going to look at why gender bias exists and delve into some real-world experiences of women in the health & safety profession. Then, in part two, we will to look at the challenges and advantages women working in a male dominated environment have, before, in the final part, exploring how we overcome gender bias in the workplace.
This interview is part of a series for Women in Health and Safety. As a member of the committee our goal is to amplify the voices of women in the profession. Some of the topics covered affect women more than men. Some are deeply personal. It’s our belief that we bring our whole selves to work and therefore should be able to talk about all sorts of issues that affect us, day-to-day, in a work setting.
Two things have struck us throughout this series. 1) We all have so much in common. 2) People are often very willing to open up, if they’re given a safe opportunity to do so with someone who is willing to listen without judgement. So, our hope is that issues discussed in this series resonate with readers, perhaps making some feel less alone, perhaps even giving some the confidence to share their own stories. We also hope readers will be encouraged to check in on colleagues, talk about the whole selves we bring to work and be there to listen.
Tiffany is a passionate health and safety professional with CMIOSH status with more than 15 years’ experience. She is currently a Customer Engagement Executive with Safety Culture. She has a foundation in the science sector, and experience in manufacturing, warehousing and logistics industries.
Dr. Fari Fathi is the owner and founder of Ace Safety 365 and, currently, Health and Safety Officer at Genecis Bioindustries Inc. She oversees industrial hygiene, chemical safety, biosafety, radiation safety. Her background is science, she has a PhD in analytical chemistry from the University of Toronto. Fari emigrated to Canada, from the Middle East, around 10 years ago.
Fari’s experience of health & safety in Canada is that it is very male dominated. There are few women, and very few from minority backgrounds.
Anne is the Director of Health and Safety at the Canal & River Trust. She has been a safety professional since 2001, with twenty years of experience ensuring safety management in high, medium, and low risk operational environments. Anne has led many high-performing teams of safety professionals with a focus on establishing a positive safety culture and continuous improvement, working with colleagues across organisations to promote industry-leading health & safety performance, employee engagement and wellbeing.
Fiona Gilbert CMIOSH
Fiona is the Head of QSSHE & Compliance with Serco-Transport. She is responsible for leading, developing and providing specialist support to the businesses within the Transport portfolio inclusive of the regulated businesses.
Melissa is Associate Director EHS UK ED and EMEA CDCS at Labcorp Drug Development. She has 20 years’ experience in operating business centers in the UK, USA and Trinidad, with high levels of experience and a strong track record of leading teams, collaboration, influencing across diverse teams, technical skills and performance delivery in health, environment & safety programs, safety management systems implementation and leading high-performance teams.
Jessy Moreira Gomes
Jessy is Technical Safety Systems Lead at UCL. She has been inspirational and passionate in promoting equality and diversity within the health and safety profession and the UK construction industry in particular. She is a champion of diversity and inclusion, having gone through discrimination and being forced to leave her job after returning from maternity leave. She has made it her mission to share her story, empower other women and bring the issues women face in the industry to the forefront.
Rebecca is Health and Safety Manager at Freshfields Bruckhaus Deringer. She has worked in various gender balanced industries over the past decade but has found health & safety to be very male dominated, particularly at the more senior levels.
Leah is Health, Safety, Environment & Facilities Leader at Honeywell Aerospace, Edinburgh. She graduated from Coventry University with a Masters in Oil and Gas Management. She has worked as a QHSE consultant in many industries including healthcare, logistics, automotive, Aerospace and oil and gas.
What are the reasons for gender bias or discrimination in the workplace?
Jessy Moreira Gomes (JMG): “I think part of it is due to the lack of women in leadership levels. That can have an effect on policies, like maternity leave and how women’s issues are treated. On top of that, women seem to be able to get to a certain level and then find it hard to break through. I think a lot of us take a step back in our careers because of children.
“Also, women are more likely to be the main career for children, even if both parents are working. You’re likely to be the one who looks after children more, sacrificing work time and looking after activity around the house. If you don’t have a boss who is a female advocate, understanding the woman is more likely to take responsibilities at home (although, of course, this isn’t the case in all households), that makes it harder.
“When you’re in a male-industry, certain types of behaviors can be favored which are less favorable to women. The flexibility of policy makers and leaders within companies can make decisions that are in favor of parents.
“After I got married, I started to have anxiety about the fact the organisation would look at me differently, expecting me to have a child and then probably a second child.
“I haven’t experienced menopause yet, but organisations have to drive policy around it so that women aren’t penalized because of certain symptoms of the menopause, or pregnancy. It’s also important to remember the way we experience events like menopause and pregnancy will be different from individual to individual. And women can also have difficult symptoms each month, but we don’t speak about it and that can make life difficult.”
Describe some of the instances of discrimination you have experienced in the workplace…
Fari Fathi (FF): “I’ve seen candidates with much less experience than me hired for positions that I haven’t even been offered an interview for and I’ve experienced a salary gap.
“In decision-making meetings, it’s harder to be heard. While ideas from male team members will get more support. You have to put more data, strategy etc. forward for your ideas to be heard.
“When it comes to regulations, when I explain them, I find people try to fact-check me and ask me where I’ve got my information from. I have to get the book of codes, and then show people one-to-one. Or, with fire safety, I’ve had to call the fire department and get them to back up my comments.
“The worst ever thing that I have experienced has been harassment, both from female and male colleagues. I’ve been on the receiving end of psychological harassment from male colleagues who feel they’re at level that they could act any way they liked towards me, raising their voices at me in front of other colleagues, using an aggressive tone in emails and always trying to put me down in meetings. I’ve also experienced some of this from women of a difference race too. Admittedly, in some workplaces, I’ve had more support from male colleagues than female colleagues.
“I am grateful to women throughout history who have enabled women to get to the positions we’re in now, and it makes me determined not to quit. I just have to find ways to overcome it and try to make it better for the next generation.
“Discrimination can make you feel you need to put in more effort because you’re not good enough. That can lead to stress and eventual burn out or depression. The mental health impact can spread so far.
“In Canada there has been a high level of harassment in workplaces, which has impacted people’s mental health. So, the Canadian government now enforced that employer’s provide training to supervisors about workplace harassment.”
Leah Tusiime (LT): “I’m usually paid lower than male counterparts doing the same job. I took one role and later found out that, when they gave me this role, they took it down by two salary bands. I just kept doing the job though, I didn’t speak about it because I didn’t want to rock the boat – I just looked for a different role where I’d be more appreciated and moved on.
“Also, I find men often assume I don’t know what I’m doing. I’ve always been the only person who looks like me in all the roles I’ve done so far, and that puts pressure on how you’re perceived. You have to work extra hard. There is bias, but I try to work hard to make sure I prove them wrong. I look forward to the day when I will not be judged by my skin color and gender but on the content and value of what I bring to the table. We still have a big job to do.
“It was hard to speak out, but over time I have learnt to speak up. This is because I have seen other women speak up who have then gone on to do well in the organisation. However, every time I have spoken up, its caused conflict and tension, so I would prefer to just move on for peace to reign.”
Tiffany Argent (TA): “I worked in a male-dominated workforce in manufacturing and hit a glass ceiling. I was told by one of the directors ‘you won’t be able to commit enough time to become a director in health & safety because you’ve got a family to look after.’ My qualifications and experience weren’t enough. I wasn’t going to succeed because I had children.
“On one occasion, a new manager suddenly reviewed my performance after I asked for a pay increase. It was highlighted that I was constantly five minutes late every morning. It had never been an issue before, and I worked an extra 30 minutes every day in the evening. The reason I was five minutes late was because my children’s nursery didn’t open until 08.00 and it took me 35 minutes to get from there to work. He suggested I could just leave my children on the doorstep of the nursery, or my husband could do it. I’m a single parent! I decided that their policy was not inclusive, and I moved on rather than confronting them. Looking back, I wish I had the courage to push back like I see other women in the media now.”
Melissa Mark-Joyce (MMJ): “I’ve worked in male-dominated offshore oil & gas in Trinidad, the US and the UK. As a young female engineer early in my career, I was the only woman offshore and some people felt I shouldn’t be there. They didn’t think it was suited to women because it was a rough environment with heavy machinery.
“The culture was challenging at times. I wasn’t always listened to or included. I became the line manager for the offshore teams when I was 30, with five-eight years’ experience. I was leading a team of 200 offshore workers and some of my direct reports struggled with that. They were resistive. The good thing was the company encouraged conversations and support mechanisms to allow me to do well.
“Working with those who resisted me being in a leadership position was an opportunity for me. I learnt how to engage and motivate people who may have barriers up even before they get to know you.
“I’ve noticed things change massively over the years though and don’t experience it anymore. There is still work to be done but organizations have seen the importance of diversity and inclusion.
“Networks like Women in Health & Safety in the UK, OneWISH – the Global Coalition of Women in Safety and Health Networks, and the Women’s Energy Network, which I was involved in the US, help support women in similar situations to mine. Hearing stories and best practices from others can really help.”
Fiona Gilbert (FG): “I can give you two examples.
“At London Underground, I was working in a team of seven – six men and me. We were all the same grade, with various strengths, weaknesses and experiences. One day, all the guys were away from their desks and a project manager came over, asking to speak to one of them. I said they weren’t around, but I could help. This project manager asked me a technical question about health & safety, which I answered. All was fine and he went away. Later that day, I popped out for lunch, and whilst I’d been away, he had come back and asked the men in the team to check the answer I’d given him. My teammate stood up for me – he said: ‘Fiona’s answered it, so why are you asking me?’”
“On another occasion, working for another train operating company, I was in a technical meeting about safety validation. There were six of us in the meeting room, I was the only woman. One of the guys got my name wrong three times, he called me completely different names each time. He wasn’t taking me seriously and was just being rude. Again, someone stood up for me and on the third time, one of my colleagues said, ‘her name’s Fiona’. It made me cross, but it also affected my confidence. It makes you think ‘well maybe I shouldn’t be here.’ I’ve had it again and again, where I’m the only woman in the meeting and somebody just hasn’t looked at me.
“Also, in that role, people used to come to me and assume I was team admin or the receptionist, purely because I was female.
“I got a tip once, to go and sit in the middle of the meeting room table if you’re the only woman in there, don’t sit at the edge. I made a point of doing that at London Underground because it was so male dominated. It makes it harder for you to be ignored. But you shouldn’t have to do that. I also always wear a jacket when I go into face-to-face meetings because I notice I get taken more seriously when I do. But again, you shouldn’t have to do that.
“Also, in that role, people used to come to me and assume I was team admin or the receptionist, purely because I was female.”
Anne Gardner-Aston (AGA): “At the start of my career I wouldn’t have called it ‘gender bias’. I would have thought it was more about being junior. But somebody came into the organisation who was similarly junior, but male, and they didn’t get asked to make the tea or go out and get the sandwiches. That was my first introduction to it. And it’s only really in retrospect that you think, ‘Oh, for God’s sake, how did I miss that?’
“More latterly, it’s the old tropes of being cut across in meetings, not being allowed to finish a sentence before somebody else carves in on it and having ideas appropriated. You’ve put something forward for discussion to test it out, and a someone will pick it up and take it to the boss as his idea. Maybe that’s a confidence thing, about needing to test ideas out before presenting them to somebody in authority. Being ignored in a conversation, even though you’re the more senior party.
“Having been involved with OneWISH recently, a group of us were talking about a health and safety publication, and we went through it cover to cover and there was one picture of a woman in there, and it was a by-line picture. It was tiny. And even all the adverts were photos of men. And I couldn’t understand how someone in this day and age could look at that and think it was fine to publish. There’s a bias that is perhaps invisible to a lot of people who are in decision making positions.
“A lot of what we’re trying to do with diversity and inclusion and is amplify underrepresented groups and bring it into the conscious brain more so that people recognize it when they see it. Tides are turning slightly, and those feminine traits are being valued and respected and they they’re becoming a little bit of the norm.”
Rebecca Walpole (RW): “I once had a conversation with a male manager who said, ‘women don’t have the right brains for health and safety’.
“I’ve been in situations where I’ve been made aware that, as a female, I wouldn’t succeed. I’ve experienced innuendos in the office, where you feel you have to go along with it, or you won’t fit in.”
After Disability Awareness, What’s Next?
Disability awareness tells people that it’s time to stop using offensive disability slurs, like “retarded,” and to update formerly approved but now outdated words, like “handicapped,” to “disabled” or “person with a disability.”
A next step might be to move towards identity-first phrasing, like “disabled person” or “autistic person.” Better yet, ask the disabled person what disability terms they prefer and respect their preference without lecturing them.
Etiquette and Curiosity
Disability awareness says don’t stare at disabled people, but don’t look away or avoid them either. And disability awareness tends to suggest that it’s okay to ask a disabled person question, because that shows you aren’t afraid of them.
A more nuanced and flexible approach is even better. In most situations, interact with disabled person as you would anyone else, until you get clear indication from the person that they need or want you to do something different to accommodate their disability. But don’t ask a disabled person personal question about their disability unless you are a close friend or relative, or have a specific professional need to ask. Don’t expect every disabled person you meet to “educate” you about disability. Some disabled people are happy to do that. It’s a kind of personal mission for them. But many if not most prefer to just get on with their day, and don’t appreciate being pressured to offer free labor — the effort it takes to teach a random stranger how to treat disabled people with respect.
Disability awareness calls for businesses and other organizations to learn about and comply with accessibility standards, like those in the Americans with Disabilities Act, as well as state and local codes. Since access barriers are still far too common, decades after accessibility standards have been in place, compliance would certainly be a plus.
But mere compliance is literally “the least we can do.” Accessibility standards are starting points. To move beyond disability awareness, aim for maximum ease of unassisted use and access for everyone — not the just minimum needed to avoid a lawsuit. And ask disabled people and their organizations for advice on making buildings and online services accessible and user friendly.
To provide better service to people with disabilities — especially employees and students — disability awareness emphasizes learning about and following the “reasonable accommodation” guidelines in the Americans with Disabilities Act. The standard approach for organizations has been to set clear policies for applying for and evaluating disabled people’s requests for accommodations. And the responsibility to accommodate disabled people has been understood to be limited to what is easy and inexpensive to provide.
Businesses, schools, government, and other institutions can do better. Avoid making the accommodation process bureaucratic and difficult for disabled people. Give employees of all levels wide latitude to negotiate and provide accommodations without strict boundaries. Encourage provision of accommodations, don’t pressure employees and administrators to keep them to a minimum. Above all, consult disabled people themselves and as much as possible, follow their lead in deciding how to accommodate them. While most accommodations are “reasonable,” more challenging or profound modifications to standard practice shouldn’t be dismissed out of hand, if they would offer disabled people more meaningful access and opportunity
Understanding of Disability
Disability awareness teaches that disabled people deserve equal rights, support, and protection — and that disabled people want to be treated like everyone else. They don’t want to be “defined by” their disabilities. This is true, but only to a point, and in more complex ways than disability awareness tends to take into account.
Disabled people have equal rights, both ethically and by law, even when those rights seem to pose a degree of risk. Disabled people should never be abused, but they don’t necessarily always need protection. Support and protection is necessary for some disabled people, but they should be provided in forms disabled people prefer, not what others think they need. And disabled people certainly don’t want to be treated worse because of their disabilities, but also don’t want their disabilities themselves ignored or minimized. Many disabled people see their disabilities as an important part of who they are.
Most people start with basic awareness, and then move on from there. Some people start out further along, and progress even further. Some people make the journey naturally, through time and experience. Others need deliberate education and persuasion. And it’s not just non-disabled people. Disabled people themselves make the same journey, along the same continuum. Having a disability alone doesn’t always make a person disability “aware,” or automatically prompt them to more advanced disability thinking.
Disability awareness isn’t enough. It’s a beginning, not an end. But who really needs more than the most basic disability awareness?
Disability awareness is a crucial first step, and preferable to ignorance, ableism, and cruelty. But it is only a first step. And taking the next steps is important for everyone.
- Professionals, who’s work directly affects disabled people’s health, finances, legal rights, education
- Employers and HR professionals, who exercise enormous power over disabled people’s careers and livelihoods.
- Customer service people, who often set the tone for disabled people’s everyday interactions in the community — and who can determine whether a business is truly disability friendly or not.
- Disability service providers, who may play a key role in supporting and empowering disabled people, or further oppress and confine disabled people — all depending on the provider’s personal attitudes and understanding of disability issues.
- Lawmakers and government officials, who help determine the shape and effectiveness of disability policy — and who increasingly need to care about their connection with disabled voters.
- Family and friends, who can provide a strong base of support and encouragement for the disabled people in their lives, or tragically end up undermining them, hurting them, and closing off avenues for growth and independence.
Can COVID Be an ADA-Covered Disability? Alabama Federal Court Says “Yes.”
As the COVID pandemic continues, and an increasing number of employees have contracted the virus, there are many potential employment issues surrounding an employee’s positive test result. At the outset of the pandemic, many states and local governments-imposed rules on employers requiring mandatory isolation and/or quarantine of employees who tested positive or were exposed to COVID.
Over time, those restrictions have changed or lifted in most areas, but the legal issues remain. In fact, in some cases the path for employers is more complicated by the lack of governmental requirements. Should employees be granted time off for having contracting COVID, and if so, how much? Are such employees entitled to FMLA leave? Is COVID a disability under the ADA requiring the employer to consider reasonable accommodations? A federal court in Alabama recently weighed in on one of the key issues regarding an employee’s COVID diagnosis – application of the ADA.
In the case at issue, the employee tested positive for COVID and was ordered by her doctor to isolate for 14 days (consistent with CDC requirements at the time). The employer terminated the employee’s employment on the 13th day of isolation, when she refused to return to work before the 14-day isolation period ended. The employee filed suit alleging, among other claims, that her employer violated the ADA by refusing to grant her leave as an accommodation.
A motion to dismiss the case brought the question to the Court: Does a COVID diagnosis count as a disability under the ADA?
In its defense, the employer argued that the employee’s COVID diagnosis was not a disability under the ADA and that the employee had not alleged that her condition substantially limited a major life activity, as required by the law. The employee contended that her symptoms, which allegedly included “severe weakness, fatigue, brain fog, high blood pressure, cough, difficulty breathing, fever, and swollen eyes,” did substantially limit major life activities. The Court agreed with the employee, engaging in an analysis under the ADA in concluding that the employee alleged symptoms that substantially limited her ability to breathe, concentrate, and work, all major life activities. As a result, the Court determined that COVID could be disability in certain circumstances, depending on the severity of the employee’s symptoms.
In its opinion, the Court was clear that not all cases of COVID will constitute a disability under the ADA. Those employees with very mild or no symptoms may have no limitations to their major life activities. The key take away for employers is that whether COVID is or is not a disability will be a case-by-case analysis depending on the employee’s symptoms. If the symptoms limit the employee’s ability to work, the employer should consider the diagnosis a disability and engage in the interactive process with the employee to determine whether a reasonable accommodation (including leave) can be granted.
Employers should resist the impulse to automatically consider COVID a short-term minor illness, like a cold, that would not have ADA implications. As local requirements for leave are repealed or have expired, employees needing leave due to COVID symptoms may be more likely to turn to the ADA to provide time off while they are sick. As this case shows, COVID can, in some cases be a disability. If it is, employers should treat it accordingly by engaging in the interactive process.
ADA may require additional leave following FMLA exhaustion, EEOC reminds employers
As this settlement exemplifies, policies that fail to make room for accommodations can land employers in hot water.
- The Americans with Disabilities Act may require additional leave for workers who exhaust their Family and Medical Leave Act entitlements, the U.S. Equal Employment Opportunity Commission warned in a recent press release. The agency said a trucking and property management company will pay $65,000 to settle a lawsuit alleging the employer violated the ADA by terminating employees unable to return to work after 12 weeks of medical leave. The agency announced the settlement Feb. 15.
- EEOC charged that the company failed to comply with the ADA when it fired two employees because of their disabilities, rather than providing a reasonable accommodation. The agency claimed that it was the employer's policy to terminate employees who could not return to work after using the 12 weeks of medical leave allotted to them by the FMLA.
- The company dismissed one employee of 30 years who asked to extend his FMLA leave by three weeks, EEOC alleged. The agency claims the employer terminated another worker with 20 years' tenure who needed one additional week of leave after his FMLA leave expired.
"Policies that lead to the automatic termination of employees immediately upon the expiration of FMLA leave conflict with the ADA — specifically, its requirement that an employer engage in an interactive process with an employee to determine whether an accommodation that does not create an undue hardship is possible," EEOC regional attorney Marsha Rucker said of the settlement. "Additional leave can be a reasonable accommodation."
The FMLA requires employers to provide workers with 12 weeks of job-protected leave for medical or family reasons. But under the ADA, employers may be obligated to provide additional leave as a reasonable accommodation. Neither law makes clear, however, exactly how much leave is reasonable, creating a gray area that courts have tried to address in recent years.
In late 2017, the 7th U.S. Circuit Court of Appeals handed down one of the more significant rulings to grapple with this question. In Severson v. Heartland Woodcraft, Inc., an employee charged that his employer violated the ADA when it fired him instead of granting his request to extend his exhausted FMLA leave by two to three months. The 7th Circuit took the employer's side, reasoning that "a multi month leave of absence is beyond the scope of a reasonable accommodation under the ADA."
More recently, the 5th Circuit found that no extra leave was due for a worker who used up her FMLA leave and asked for extra time off without specifying a return-to-work date, as the ADA does not require indefinite leave as an accommodation.
Even as decisions like these attempts to clear up the muddled waters surrounding the intersection of the ADA and FMLA, employers lack an exact amount of time that remains reasonable. Still, they can be sure of one thing: Policies that erase the possibility of accommodative leave can lead to trouble with both EEOC and the courts.
Real benefits of making your workplace accessible to everyone
It can be a danger for disabled people to disclose their disability because sadly, discrimination and exclusion occur.
Disabled people make up 18 per cent of the Australian population – and probably even more if a disability is not diagnosed or disclosed.
That means your employees, your clients and customers, your colleagues, your family members, your friends – they’ll comprise disabled people. It’s also why it’s so important that your organisation is accessible and inclusive because your disabled employees need to feel valued, trusted and able to do their jobs.
Disability doesn’t mean inability
The social model of disability means that barriers created by society can prevent disabled people from having full access to work, health care, entertainment and art. But by removing these barriers, they can lead full and active lives.
At a 2018 Disability Royal Commission hearing focused on employment, it was found that the proportion of disabled people in the workforce is much lower than that of non-disabled people: 53.4 per cent compared to 84.1 per cent.
“We’ve been employed at a rate approximately 30 per cent less than the general population during the last 30 years,” said former Disability Discrimination Commissioner Graeme Innes.
It was also found that many disabled people are offered unpaid work experience, but not paid work.
This needs to change. And it can change with you, as CEOs and senior management.
How inclusive is your workplace?
Here are some things to consider. Is your workplace physically accessible? For example, does it have a wheelchair-accessible entrance, a lift, clear pathways, kitchen benches at different heights, accessible alarm systems, accessible toilets, a quiet room in which to retreat?
Is your website and social media accessible with captioned videos, image and video descriptions, content warnings, good color contrasts, easy-to-read text and information in multiple formats (like Word, PDF, plain English, audio and video)?
Are you making your events accessible? Are you holding them in wheelchair-accessible venues, providing Auslan (or the regional equivalent) interpreting, pricing them affordably, catering to dietary needs, providing access information about the event on your website, holding events that aren’t too early or late in the day, providing a quiet room for participants in which to retreat, recording and/or live streaming the event?
Are you ensuring there’s a place for disabled people at every table, especially when working on or talking about disability issues?
Are you working to ensure more disabled people are in adequately paid employment with accessible application and interview processes – job ads and options to apply via Word document, voice recording, Auslan (or the regional equivalent) videos, accessible workplaces, providing flexible employment options (part-time, casual, flexible hours, job share, work from home), and creating a safe space for disabled people to be ourselves and progress within the organisation?
Listen and learn
- Are you listening to and learning from a wide range of disabled people, especially disabled First Nations people and disabled people of color? We aren’t homogenous, and we don’t all think the same.
- Are you ensuring your stores and restaurants are accessible (see the event and digital access considerations above) and ensuring accessible changing rooms, counters, seating options and so on, and that your staff have undertaken disability awareness and cultural competency training?
- Are you open to feedback about your inaccessibility and ableism, and are you responding empathetically and implementing change? Do you have a disability inclusion and accessibility action plan and are you adhering to and updating it?
- Are you assisting disabled people with lodging complaints and advocating alongside us when we encounter ableism and discrimination? One of the kindest things I’ve encountered is when my writing agent and employers have asked how they can support me when I encountered ableism in the media.
- Are you calling in your colleagues, family and friends when they use ableist language, explaining why these slurs are harmful to disabled people – even when it’s not directed at disabled people? Nobody ever uses a disability slur as a compliment. A useful guide is on Refinery 29.
- Are you convinced that disability is a tragedy or something to be ashamed of? It’s really not. For many disabled people we see disability as a proud part of our identity and rejoice in the disability community.
- Are you saying the words ‘disabled’ and ‘disability’, rather than euphemisms like ‘special needs’ and ‘differently abled’? It’s important.
- Do you have books by disabled people in your organisation’s library? Growing Up Disabled in Australia (edited by me), Disability Visibility (edited by Alice Wong) and Demystifying Disability (written by Emily Ladau) are good to have on your shelves.
- Are disabled people included in career development programs? Are these programs accessible?
- Are you ensuring that disabled people are employed to do their jobs as accountants, lawyers, healthcare workers, journalists, tradespeople and so on, rather than often being the ones to solve access and inclusion issues in the workplace?
- Have you got a succession plan for disabled people to be leaders? Are you making space for them?
- Are you doing these things every day?
Accessibility and inclusion for disabled employees isn’t a new thing or something to be feared. All employees have access needs – think caring for children and elderly family, dietary requirements, sit/stand desks, prayer times and work from home arrangements. By asking all employees what their needs are and accommodating them you are showing appreciation, respect and care for your staff. Access provisions help all employees work as best as they can. Employees also don’t have to disclose their disability diagnosis to state their access needs.
I often get asked to advertise job opportunities to the disabled community because people don’t know where to find us. But we are everywhere – you just need to connect meaningfully. It’s important to connect with disabled people and make them feel welcome in your organisation.
If you’re having a leadership event, ask us to be a guest speaker (and not just on International Day of People with Disability either). Connect with disability organisations like the Disability Leadership Institute and invite us to industry networking events, making sure the venues and communication related to the event are accessible. Follow disabled people on social media, and engage with us in consulting on disability issues and beyond.
Discrimination and exclusion
It can be a danger for disabled people to disclose their disability because sadly, discrimination and exclusion occur.
“Strong anecdotal evidence collected by the Disability Leadership Institute over several years indicates that it is very risky to openly identify as disabled in the workplace,” says Christina Ryan, CEO and Founder of the Disability Leadership Institute. “It is particularly risky the more senior people are. It seems that the people who openly identify as disabled in the workplace are the small percentage who have no option to do otherwise. These are people who require specific workplace adjustments or have disabilities that are visibly evident.
“For those who can conceal their disability, or substantially minimize it, the benefits of doing so outweigh the existing risks. Even though hiding it can cause negative consequences over time, such as mental health unwellness or aggravation of conditions, it still seems the preferred choice over the stigma and bullying that many openly disabled people experience.
“Knowing that you already have a much larger disabled workforce available to you is just the beginning. The next step is to create a workplace where your disabled employees feel safe being open about their disability.”
TrueBlue and PeopleReady to Pay $125,000 to Settle EEOC Disability Discrimination and Retaliation Suit
Staffing Companies Fired Employee With Psychiatric Disability Instead of Providing Reasonable Accommodations, Federal Agency Charged
WASHINGTON – TrueBlue, Inc. and PeopleReady, Inc., labor sourcing companies with offices across the United States, will pay $125,000 and furnish significant equitable relief to resolve a federal disability discrimination suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.
According to the EEOC’s lawsuit, the companies fired an employee because of her psychiatric disability. The employee, who worked at the Manassas, Virginia office of TrueBlue’s subsidiary, PeopleReady, was not permitted to return to work after being medically cleared to do so following a hospitalization for her disability. The suit further alleged that the companies terminated the employee because she required future intermittent leave for outpatient medical appointments.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which requires employers to provide reasonable accommodations to employees with disabilities and prohibits employers from taking adverse employment actions based on an individual's disability or need for accommodations. The EEOC filed suit (Civil Action No.1:21-cv-01098) in U.S. District Court for the Eastern District of Virginia, Alexandria Division, after first attempting to reach a pre-litigation settlement through its voluntary administrative conciliation process.
In addition to providing the former employee $125,000 in monetary relief, the two-year consent decree settling the suit provides for programmatic relief intended to prevent further disability discrimination. The decree requires that the companies implement an ADA reasonable accommodation policy to ensure that they will undertake the necessary interactive process to consider requests for medical leave as reasonable accommodations. Under the decree, the companies will also provide training on ADA compliance, with an emphasis on reasonable accommodations, and will provide periodic reports to the EEOC.
“Federal law clearly obligates employers to provide reasonable accommodations, including providing medical leave needed because of an employee’s disability, absent undue hardship – and there was no such hardship to the employer in this case,” said Mindy E. Weinstein, director of the EEOC’s Washington Field Office.
Debra Lawrence, regional attorney for the EEOC’s Philadelphia District Office, said, “The ADA protects people with mental health disabilities, and the EEOC is absolutely committed to enforcing that all-important national law.”
The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.
Employee with a Disability Was Not Discriminated Against During RIF
AT&T did not discriminate against an employee with a disability by selecting her for a reduction in force (RIF) on two separate occasions. The reductions in force were adverse employment actions, according to the 3rd U.S. Circuit Court of Appeals, but the appeals court did not find sufficient evidence that the first selection was made as a pretext to discriminate against the employee or that there was evidence that the worker was qualified for the position, she held at the time of the second reduction.
The plaintiff was a 30-year veteran employee of AT&T who had epilepsy and breast cancer. In January 2016, as a part of a large corporate restructuring, AT&T made selections for an RIF based on scored performance evaluations. In the plaintiff's unit, one-third of the staff, including her, were placed on "surplus" and offered immediate termination with severance or a 60-day window to apply for other positions within the company.
The district court found that the plaintiff's election to stay and seek an alternate position, which she ultimately was hired for, was not an adverse employment action and therefore could not support a discrimination claim under the Americans with Disabilities Act (ADA) or Age Discrimination in Employment Act (ADEA).
The appeals court agreed that the plaintiff did not have sufficient evidence to support discrimination claims under the ADA or ADEA. Nonetheless, the court made a broad statement that a "notice of termination, like the selection for surplus status here, is an adverse employment action even if an employee is given a window of time—small or large—before her actual discharge. Such a notice is adverse without regard to whether the employee is permitted to apply for other positions within the company, or even if she ultimately succeeds in finding another position."
After the plaintiff was able to prove she suffered an adverse employment action by being designated surplus, the burden was then shifted back to AT&T. The appeals court found extensive evidence that the plaintiff's selection was based on neutral criteria and was not a pretext to discriminate against her based on her disability. The plaintiff was unable to offer any evidence in rebuttal, and the court upheld the dismissal of her discrimination claims arising from the first RIF.
After being hired in a new position, the plaintiff almost immediately acknowledged that she was not qualified. When AT&T selected employees for surplus again in October 2016, the plaintiff was chosen and then terminated.
The district and appeals courts agreed that in order for the plaintiff to prove discrimination under the ADA or ADEA, she needed to first prove that she was qualified for her position. As she was unable to do so, her claims of discrimination and failure to accommodate related to the second RIF were dismissed.
The appeals court sympathized with the plaintiff but noted that discrimination laws "do not prohibit employers from terminating employees in protected classes when the termination is a part of a neutral reduction in force."
Fowler v. AT&T Inc., 3rd Cir., No. 20-2247 (Nov. 26, 2021).
Professional Pointer: RIFs can be considered an adverse employment action under the ADA or the ADEA, so it is important to consider neutral criteria when selecting which employees may be affected.
Stuttering Discrimination and the Workplace
While employers often accommodate people with physical disabilities, people with speech disabilities can be overlooked in the workplace. Recognizing the difficulties that people who stutter experience, accommodating them through these obstacles and acknowledging their strengths as employees can enhance their morale and contribute to a stronger organization.
Types of Discrimination
Multiple reports assessing the relationship between stuttering and workplace outcomes have found evidence of discrimination among those with speech impediments.
For example, a 2018 study of more than 13,500 respondents revealed people who stutter made, on average, $7,000 less annually than those without speech impediments. Evidence indicated that discrimination may have contributed to this wage gap, particularly for women.
Another survey, conducted in 2019, showed that participants who stutter experienced higher rates of discrimination and lower job satisfaction than those who do not stutter.
Carl Coffey, a board member and special projects chair at the National Stuttering Association, said some employers assume stuttering is directly indicative of competency, cognitive ability and potential as an employee.
He said individuals who stutter are often misidentified as lacking confidence or being nervous. However, Coffey emphasized that many individuals who stutter are confident and possess other valuable qualities, such as a strong work ethic.
"Our speech patterns have nothing to do with how competent and exceptional we can be as employees," said Coffey, who stutters.
Stuttering and the COVID-19 Pandemic
Stuttering has become increasingly visible during the COVID-19 pandemic.
Children who stutter have reported being talked over during virtual learning. Adult job seekers have found Zoom interviews more challenging than in-person meetings because stuttering on screen can cause feelings of vulnerability.
"A person's stutter can be further exacerbated by two things: the anticipation of an awkward reaction or facial expression in response to the stutter, and their own facial movements as they try to get words out of their mouths," Ansari said.
He suggested employers leverage additional options, such as a chat feature. Deactivating video entirely can make the meeting more accommodating and allow these individuals to choose a medium that works best for them.
Employers can also encourage the use of meeting features such as "raising a hand" to signal they have something to say without having to interject. This also ensures the focus of the meeting is on one specific person and that they have the time and space to speak and be heard fully.
People who stutter can request accommodations from their employer without disclosing their disability, according to the Job Accommodation Network (JAN). While companies are only required to provide accommodations for employees who experience workplace issues caused by their disability under the Americans with Disabilities Act, they should still go to HR to discuss their options.
Accommodations aren't always needed for individuals who stutter, according to JAN. But Coffey implored companies to show courtesy and respect to people who stutter regardless.
For example, a behavior that many people who stutter find rude is when colleagues try to finish their sentences for them. Listeners erroneously believe that finishing their sentence is helpful and prevents an awkward situation. However, this does not allow people who stutter to properly express themselves.
Learning more about stuttering and understanding that the impediment does not define a person can be key steps in supporting these individuals.
As Coffey said, "If HR professionals and CEOs understand that our stuttering is largely out of our control and has no bearing on how we are feeling or on our ability to do our jobs well, [people who stutter] will feel supported and included in the workplace."
New Study: 84% of Employees Report Lack of Progress on Building a More Equitable Workplace for People of Color
Hue, a 501(c)(3) nonprofit organization dedicated to building equity and prosperity for Black, Indigenous, people of color (BIPOC) communities, today released its second "A State of Inequity: Unsafe. Unheard. Unvalued." report, revealing a rise in workplace discrimination among BIPOC employees in 2021.
Key findings include:
- BIPOC employees report experiencing discrimination at work, leading to job loss, loss of empowerment and higher levels of burnout
- 40% of BIPOC employees report experiencing workplace discrimination related to their race/ethnicity
- Nearly 30% of BIPOC employees say they have experienced job loss due to race-related discrimination
- At least one-third of BIPOC (32%), Hispanic (35%) and multiracial (33%) professionals say they do not feel empowered to speak out against workplace discrimination they’ve witnessed or experienced based on their race/ethnicity.
- Marginalized professionals experienced workplace burnout and exhaustion at higher rates than their White counterparts - 44% of BIPOC, 47% of Hispanics and East Asian/Pacific Islanders, and 41% of African Americans
- Employees and HR professionals have widely differing opinions on the effectiveness of workplace diversity training efforts
- 84% of employees report a lack of meaningful progress on building a more equitable environment for employees of color over the past six months.
- Yet 82% of HR professionals say their industry does a good job of implementing diversity-related initiatives.
"In the nearly two years of the COVID-19 pandemic, the BIPOC employee workplace experience continues to be one of discrimination, under-representation and a lack of action to address these issues," said Hue founder and president Fahad Khawaja. "While America’s workplace has a long way to go for BIPOC workers, we believe that outlining these gaps and challenges can pave the way for the substantive change required for creating greater equity and prosperity and improving the collective workplace health and wealth opportunities for our communities."
- Representation in the workplace remains essential - and motivating - to BIPOC professionals, particularly those at mid-career or senior levels
- Nearly 80% of all BIPOC employees say they are motivated at work by seeing others who look like them or are from the same racial/ethnic background as them in the workplace.
This year's "A State of Inequity" report combines data from two online surveys conducted by The Harris Poll on behalf of Hue (via its Harris On Demand omnibus product) in the United States in December 2021 and January 2022. Total number of respondents from the two survey periods is 2,866 adults (aged 18 and over).
Black women have been hit ‘especially hard’ by pandemic job losses–and they’re still behind in recovery
The U.S. economy has bounced back at a stunning pace since 2020′s coronavirus recession – yet this recovery has largely left behind Black women.
Throughout much of the pandemic and consistently since December, Black women’s unemployment (5.8%) has been significantly higher than that of Latinas, Asian women and white women, according to research from the National Women’s Law Center.
Experts point to several possible factors widening the recovery gap, with hiring discrimination, burnout and a lack of substantial benefits in lower-paid industries at the top of the list.
“If you look at the experiences of Black women in corporate America, the pattern is really clear: the workplace is worse for women of color than white women, and Black women consistently stand out as having the worst experience of all,” Rachel Thomas, co-founder and CEO of Leanin.org, tells CNBC Make It. “So Black women have been hit especially hard by the pandemic’s economic downturn.”
CNBC Make It spoke with Thomas and other experts about the main issues driving this economic gap and how employers can better support Black women in the workplace.
Burning out in front-line jobs
Black women have shouldered a disproportionate share of front-line jobs throughout the coronavirus crisis that have put them at a higher risk of contracting the virus. More than 1 in 3 Black women have worked in front-line jobs, the NWLC reports, including roles as personal care aides, nursing assistants, cashiers and retail salespeople.
These industries have been the hardest hit by the pandemic and continue to be vulnerable to coronavirus restrictions and shutdowns. The recovery of these jobs remains sluggish and uneven: in January, women only gained 52,000 jobs in leisure and hospitality, or about 34%, despite making up about 53% of the industry’s workforce.
Most of these jobs have required employees to show up in person, even at the height of the pandemic. Such conditions have put Black women in a compromised position as they tend to live in regions with higher transmission rates and are more likely to fall ill, Jasmine Tucker, the NWLC’s director of research, says. “A lot of these jobs don’t offer fair paid leave or even sick leave policies, so every time you get sick, you risk losing your job,” she explains.
According to research from Lean In, 47% of Black women have gone to work during the pandemic when they had a good reason to stay home, whether that was being sick or not having child care. These high-risk, low-reward jobs have led Black women to a difficult choice: quit, or show up to work at the expense of their — and often their family’s — well-being.
Lack of child care
The ongoing child-care crisis has hit Black mothers especially hard during the pandemic, pushing a lot of women out of the workforce.
Black mothers tend to shoulder more child-care responsibilities than their white counterparts, according to the Institute for Women’s Policy Research, and are also more likely to be the primary wage earners in their families. Without access to affordable child care, many have had to quit their jobs.
More than two thirds of working Black mothers are also single. “Large numbers of Black women have left the workforce because they are mothers, or single mothers, and had to make a difficult choice to leave their jobs to take care of their children during the pandemic,” Thomas says. “The lack of affordable child-care and flexibility within their jobs has just created a very untenable, unstable situation for mothers, especially mothers of color.”
These barriers have not only made it difficult for Black women to find meaningful full-time employment, but also to re-enter the labor force. The NWLC reports that nearly 30% of Black women who are unemployed have been out of work for six months or longer.
Although the 2020 murder of George Floyd and the pandemic brought a renewed focus on diversity, equity and inclusion practices at companies, Black women – and other people of color – continue to experience racism and microaggressions in the workforce.
“Black women are still facing hiring discrimination, and if they’ve been unemployed for long periods of time, they could feel even more discouraged from applying to jobs,” Tucker notes.
The barriers for securing a job are higher for Black women because “as a Black woman, you’re facing all of the biases that go with being a woman, along with the biases that go with being a woman of color,” Thomas explains.
Black women also experience more – and more acute – microaggressions than other groups of women.
In its annual “Women in the Workplace” report, Lean In and McKinsey & Company found that Black women are more likely than white women to be on the receiving end of disrespectful and “othering” behavior. About 17% of Black have been confused with someone else of the same race/ethnicity, compared to 4% of white women.
What companies can do to help
Employers can help mitigate this economic gap by reviewing their benefits, hiring and promotional practices and updating them to be more equitable for women of color.
Such meaningful changes could include including more women of color in the workplace planning and hiring process and broadening paid leave policies, as well as designing clearer, structured promotion and mentorship opportunities for Black women.
“A lot of companies don’t truly know how many women of color they’re hiring or promoting,” Thomas says. “To make sure your hiring and promotion processes are fair, you need to track how women of color are moving through your organization.”
While the past two years have spurred some leaders to pay closer attention to the challenges Black women face in the workforce, it’s important to recognize that Black women have been dealing with these issues long before the pandemic – and it could take a long time to see sustainable progress.
“We like to find the silver lining, but the reality is, things have been really bad for Black women,” Nikki Tucker, the head of social at Leanin.org, says. “The pandemic has just finally opened a lot of people’s eyes to the things Black women have been going through all of our lives.”
BLACK RECEPTIONIST WINS RACE DISCRIMINATION CLAIM AFTER AFRO COMMENTS
In the case of Phillips v Ballymore Construction Services Ltd Ms D Phillips was employed as an Office receptionist/administrator for a construction services company. She was one of two black employees within the team employed during her employment. There were 2 employees of Indian origin and several European employees. Ms Phillips said she did not get much of an on-boarding process in comparison to 2 male American interns. She felt it had been more inclusive for them and more welcoming.
Six months into her new job, Miss Phillips sent an email to bosses complaining about racist remarks after she was twice subjected to the ‘offensive’ remark that her afro was the result of an electric shock. A tribunal report said: ‘The comments were similar and remarked about what electrical sockets Miss Phillips had touched to make her hair like that. Miss Phillips has an afro and the tribunal found these comments were made when she had her hair untied and open.’
In the same email Miss Phillips also complained to bosses about a Spanish employee using the ‘N-word’ seven times in the context of asking her, ‘I have heard it is wrong to use the N-word’. On this matter, the judge ruled Ms Perez’s comments to be ‘inquisitive’ and ‘naive’ as a non-native English speaker, rather than deliberately offensive.
The south London tribunal heard Miss Phillips advised bosses the team could benefit from ‘diversity training’ because of the incidents she had raised. She later sent another email to bosses, complaining her concerns were not being ‘addressed properly’ and raising additional concerns such as ‘being blamed for IT errors’ and ‘being accused of being aggressive’.
She raised a grievance which was dismissed, apart from one aspect relating to one of the afro comments – which was deemed ‘indirectly discriminatory’. Miss Phillips resigned in January 2019. Miss Phillips won her claims of race discrimination relating to the remarks about her hair.
Banning workers from suing their employer hurts people of color and women most
Last week, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which will block enforcement of arbitration requirements for workers alleging sexual harassment or assault. Arbitration is the process of handling disputes outside of the court system — forced arbitration prohibits workers from suing their employer altogether.
This is an important outcome for the #MeToo movement and has the potential to reach many workers and employment claims, depending on how broadly or narrowly it is interpreted.
In a fair and just country, corporations are held accountable in the courts if their irresponsible behavior harms people. However, like many policies, the communities most impacted by forced arbitration are historically marginalized groups. Indeed, forced arbitration has a disproportionate impact on low-income Americans and Black and brown women, when they are the victims of discrimination. Their abuse goes beyond the general adverse impacts of forced arbitration, noted in a new report by the Center for Progressive Reform.
What is often overlooked is how this process impacts low-income individuals, people of color and women. This lack of information led us to publish the first report to examine the legal effects of forced arbitration on marginalized communities and vulnerable groups, like residents of nursing homes.
All workers are disadvantaged by forced arbitration, but low-wage workers are more likely to be victimized by it. For example, forced arbitration is more common in low-wage industries and workplaces, even though low-wage workers — and particularly those of color — are more likely to be the victims of wage theft. According to one estimate, some 17 million workers earning less than $13 per hour have been forced into arbitration of their wage claims.
Not surprisingly, low-wage workers experiencing wage theft are more likely to be women and people of color and to have received less education. Overall, low-income people are less able than higher-wage Americans to absorb the financial impacts of unaccountable, irresponsible or illegal corporate behavior. Even the smallest loss can dramatically affect a family’s financial stability. And 80 percent of the private sector, non-union workforce is projected to be subject to mandatory arbitration by 2024.
Passage of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, act would also help build momentum for passing the Forced Arbitration Injustice Repeal (FAIR) Act, which aims to broadly end arbitration agreements for both consumers and employees. This may provide relief for marginalized groups who experience other forms of harm, in addition to workers who experience sex-based harassment.
Under the current state of the law, there is still no remedy for racial harassment, discrimination, wage theft and other civil rights claims subject to forced arbitration. A process that provides no access to court, no public record, as well as no class claims for systemic harms is inherently unfair and systematically puts historically marginalized groups at a disadvantage. Most notably, women and people of color are at greater risk of unconscious discrimination because almost all arbitrators are white men. These groups are also more likely to be the subject of workplace discrimination than their white counterparts.
In addition, women find it far more difficult to prove a pattern of sexual harassment and other types of abuse under forced arbitration because the process is secretive. As a result, arbitrators do not have to justify their decisions as consistent with prior cases, which prevents other workers or consumers from using a favorable award as precedent in their own cases. This also prevents the development of the law to fit new circumstances and information, which in turn, blinds other victims or people who could force change to systematic patterns of abuse.
In the absence of broad legislation, protecting various types of abuses, socially responsible companies can act. For example, some companies like Facebook, Google and Lyft have ended forced arbitration after facing pressure from employees. More companies need to go in this direction if they say they are committed to race and gender justice.
Forced arbitration is yet another example of historic oppression of Black communities and other marginalized groups. It deserves attention this month and all year long — and legislative support and action. Congress must end forced arbitration and restore the rights of Americans and courts to hold businesses accountable for illegal and irresponsible actions that harm people and disproportionately harm historically marginalized communities. The time to do so is now.
United States: Congress Passes Bill Ending Forced Arbitration Of Sexual Assault And Sexual Harassment Claims
Following the recent trend of state laws prohibiting mandatory arbitration of sexual assault and harassment claims, the United States Senate passed HR 4445, entitled "Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021," on February 10, 2022. The proposed bill, which the House has passed and President Biden is expected to sign into law, amends the Federal Arbitration Act (FAA) to prohibit employers from including mandatory arbitration clauses in pre-dispute arbitration agreements (i.e., contracts, employee handbooks, or offer letters) that apply to claims of sexual harassment or assault. The proposed bill also bars the inclusion of any provisions waiving an employee's right to bring sexual harassment or assault claims jointly and/or on a class basis.
- The proposed bill applies to claims that arise after it is signed into law. Although the language of the proposed bill is somewhat unclear, the proposed bill goes into effect immediately upon enactment and appears to apply to any claims or disputes of sexual harassment or assault that arise after the bill goes into law. As such, even if an employer entered into a mandatory arbitration agreement with an employee before this bill becomes law, it is unlikely that any claims or disputes relating to sexual harassment or assault that arise after the bill is signed into law will be subject to arbitration.
- Employees may still elect to arbitrate sexual harassment and assault claims. Critically, the proposed law provides employees the option to arbitrate such claims if they so desire.
- Revisions to arbitration agreements may be necessary. Employers should review any agreements containing arbitration clauses or class action waivers to determine whether the bill, if signed into law, will render such agreements and/or class action waivers unenforceable. Any provisions requiring employees to waive their rights to bring sexual harassment or assault claims may run afoul of the bill.
- The proposed law may allow employees to avoid arbitration. As drafted, the proposed bill may create an avenue to avoid arbitration entirely by asserting sexual harassment or assault claims. Although it is not clear whether non-harassment or assault claims included in a lawsuit that also alleges sexual harassment or assault would be tried in court or subject to arbitration, there is some concern that plaintiffs' counsel may include such claims to avoid arbitration and facilitate having an entire dispute heard before a court. These issues will have to be resolved through litigation.
- Courts, not arbitrators, will decide challenges. A court, applying federal law, will decide challenges to the validity or enforceability of arbitration agreements covered by HR 4445.
- The proposed law applies beyond the workplace. While proponents of the bill have been focused on perceived workplace inequity, the bill is not limited to "workplace" sexual harassment and assault. The language affords the same protections to any individual who may be a victim of sexual harassment and assault in non-workplace settings where a mandatory arbitration clause applies.
United States: Congress Ends Mandatory Arbitration Of Sexual Assault And Sexual Harassment Claims
Earlier this month, Congress passed a bill that will effectively end mandatory arbitration in workplace sexual assault and harassment cases, providing employees with a choice of proceeding with their claims in either court or via arbitration. The legislation, Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act ("Act") was passed by a bi-partisan majority in the House and Senate and is expected to be signed into law by President Biden. This law is significant as there are an estimated 60,000,000 workers in the United States who are subject to arbitration clauses, many of whom do not even realize it.
Key Takeaways for Employers
This Act will amend the Federal Arbitration Act to allow employees to (1) invalidate mandatory arbitration clauses in "pre-dispute arbitration agreements" (i.e., employment agreements, employee handbooks, or offer letters) that apply to claims of sexual harassment or assault and (2) invalidate any waiver on their right to proceed in a joint, class or collective action, with respect to such claims. The legislation covers all claims of sexual harassment or assault, whether they arise under federal, state, or tribal law.
The Act takes effect immediately upon signing by the President and applies to any claims or disputes of sexual assault and harassment arising after the Act becomes law. This means that even if employers have mandatory arbitration agreements in place with employees at the time the Act is signed into law, employees may, upon the Act's effective date, unilaterally invalidate any requirement that they arbitrate claims for sexual harassment or assault arising after the Act's effective date. Instead, employees may elect to proceed in court with these claims. Importantly, though, the Act also allows employees to elect to proceed with arbitration consistent with an agreement; the decision rests with the employee. Some employees may prefer the confidentiality of the arbitration process over a public court setting and may prefer a swifter resolution of the claim through the arbitration process.
At present, it is unclear whether the Act will allow an employee to elect to litigate only claims for sexual assault or harassment, or whether the employee may elect to litigate any and all employment claims in court, assuming at least one of the claims is for sexual assault or harassment. For example, an employee may have claims against an employer based on theories of race discrimination and sexual harassment. As written, the Act only allows employees to invalidate the arbitration requirement with respect to claims or sexual assault and harassment. However, it may be that a court will grant an employee's request to litigate both in court, in order to avoid unnecessary duplicate proceedings.
Employers with arbitration agreements and/or class action waivers in place with employees should review these contracts and determine whether the Act will render them invalid or unenforceable. Employers may want to revise these agreements to expressly carve out sexual assault and harassment claims in order to bring the agreement into compliance under the Act.
In addition, all employers, whether they have mandatory arbitration agreements or class action waivers in place or not, may want to review their existing policies on harassment. This Act is a direct outcome of the #metoo movement. This movement has had a substantial impact on what employees expect from employers in terms of anti-harassment policies, anti-harassment training and proper workplace investigations. Employees across the country have a much lower tolerance for any violations of harassment policies, and they expect employers to be proactive in communicating the work rules and expectations on this topic. At this point, all employers should have well-established complaint-reporting protocols in the workplace for sexual harassment, provide periodic anti-harassment training to supervisors and employees, and ensure they have an effective investigation process in place in case a complaint of harassment is lodged.
After the #MeToo bill, is the future of mandatory arbitration in question?
A brief history of mandatory arbitration
Before exploring where it stands now, it's worth noting how mandatory arbitration became so commonplace for employers. The practice emerged from the Federal Arbitration Act, legislation from 1925 that allows for private dispute resolution outside the judicial system through arbitration. Often, this practice is used between businesses as a cheaper and faster alternative to court-provided resolutions.
In 1991, the U.S. Supreme Court issued Gilmer v. Interstate/Johnson Lane Corp., a landmark decision upholding the enforceability of an arbitration clause between an employer and an employee with age discrimination claims. This paved the way for employers to require employees to sign arbitration agreements — or employment contracts with mandatory arbitration clauses — to avoid use of the legal system.
This decision was a game changer for employers. Due to the privacy of arbitration, data can be hard to come by. According to an estimate from the Economic Policy Institute, a left-leaning think tank, however, the share of workers subject to mandatory arbitration rose from just over 2% in 1992 to roughly one-quarter of the workforce by the early 2000s. Per the same analysis, the share of workers subject to mandatory arbitration now exceeds 55%.
In 2018, the Supreme Court ruled on Epic Systems Corp. v. Lewis, finding that arbitration agreements that require individual arbitration are enforceable under the Federal Arbitration Act. The decision allows employers to restrict workers from filing class action lawsuits and instead require that they pursue claims individually through arbitration.
How it works
Employees (or former employees) who decide to use arbitration typically will approach company leadership or an HR representative, who will direct them to file a claim. Two arbitration organizations dominate in the employment arbitration space: the American Arbitration Association and JAMS Mediation, Arbitration and ADR Services.
If an employee first attempts to sue — many workers do not initially realize they signed mandatory arbitration agreements — the company will usually respond with a motion to stay the case due to the arbitration clause. The court will then either stay the case until the arbitrator reaches a decision or dismiss the case outright, Aaron Goldstein, partner at Dorsey & Whitney, told HR Dive.
The process that unfolds after that tends to look like a slightly less formal version of a legal proceeding, minus the jury. Usually there is a single arbitrator, but in more complex cases, there may be a panel. The claimant and employer each file statements.
"The next step is usually to have some amount of discovery, like you would [have] in a court," Goldstein said, such as gathering depositions from witnesses and requesting and gathering documents. "Frequently, that process will be a little more streamlined [than in court], and the arbitrator will work with the parties to come up with an appropriate discovery plan for the particular case."
The discovery process works toward an arbitration hearing, which involves one to two days of argument and testimony. Then the arbitrator hands down a decision.
While the arbitration process tends to take less time than the judicial route, it can still be lengthy. "I think getting something resolved within a year is pretty typical," Goldstein said. "Often, you shoot for shorter. It's just that reality often encroaches [with] scheduling people's depositions … people get busy."
Finally, the arbitrator issues a decision — typically, if the arbitrator finds in the employee's favor, a cash settlement of some kind.
Arbitration can have many benefits for the employer — privacy and cost effectiveness being perhaps the most notable. But the process has also drawn scrutiny and criticism from worker advocacy groups and other political organizations, and not only in cases of sexual harassment and sexual assault.
The power differential is one factor in worker advocates' complaints. When two businesses come together and form an arbitration agreement, they tend to be equals, or equally free to enter into the agreement. There is more likely to be an element of negotiation.
But workers have historically been more dependent on a job offer than the employer is dependent on them. "Who would risk a valuable job opportunity … over an obscure procedural provision?" EPI questioned in a briefing paper on the topic. As "mandatory" arbitration implies, a worker likely loses out on an offer if they refuse to sign such an agreement, or at least must weigh the risk of doing so.
Opponents of the practice also argue that arbitrators are incentivized to find in employers' favor, due to employers holding the contracts and the potential for repeat business. "Research has found that employees are less likely to win arbitration cases and they recover lower damages in mandatory employment arbitration than in the courts," wrote Alexander J.S. Colvin, author of the EPI report and professor of conflict resolution at Cornell's Industrial and Labor Relations School.
Arbitration can further be interpreted as a DEI issue: EPI has noted that women and Black workers are more likely to be subject to the practice.
"There's what I would call the old, dark playbook: Keep it quiet, pay people off and move on. And then there's the new playbook, which is the only playbook as far as I'm concerned: Act quickly, act decisively, act publicly. So you don't have any dirty laundry."
Is there an 'ideal' form of arbitration?
One of the more pernicious aspects of many arbitration agreements is the added use of nondisclosure agreements, Goldstein said. Such policies require claimants to maintain silence about their experience as part of their agreement. Goldstein counsels employers not to use nondisclosure agreements, in part because they're "such a bad PR hit."
"There's what I would call the old, dark playbook: Keep it quiet, pay people off and move on," Goldstein said. "And then there's the new playbook, which is the only playbook as far as I'm concerned: Act quickly, act decisively, act publicly. So, you don't have any dirty laundry."
In cases of harassment, retaliation and other law-breaking, for example, employers can protect themselves by following established best practices: investigating claims, disciplining (and sometimes removing) the offending workers and reiterating company policies.
The use of nondisclosure agreements can also result in hefty payouts, particularly if the claimant happens to have more resources and be well represented. Goldstein noted this can occasionally lead to seemingly ironic support of NDAs by claimants' legal representatives, as it can allow their clients to collect a larger award. While a company may appreciate avoiding a PR catastrophe in the wake of a scandal — and may have deep pockets — NDAs can also be used to protect predators and sustain a toxic culture, which rarely remains in the shadows for long.
Though mandatory arbitration tends to be publicly unpopular and yet still a route many employers take, the story of arbitration itself is more complicated than it may seem. There are reasons employees would choose to use arbitration, and also reasons employers may not want to.
"In the not-so-distant past, I represented plaintiffs myself, and there are some instances where plaintiffs want privacy — the privacy of arbitration," Christie Del Rey-Cone, partner at Mitchell Silberberg & Knupp, told HR Dive. "There are some instances [in which] they don't want their story to be publicly accessible for any variety of reasons that make a lot of good sense."
On the other hand, employers who go the route of arbitration lose out on the opportunity to have the employee's complaint dismissed on summary judgment — upon judicial review, without a full trial, and often quickly. Summary judgment dismissals are extremely common in employment law cases; one 2013 analysis found summary judgment was granted, in whole or in part, in 77% of employment discrimination cases, for example.
Arbitration cases typically do not use summary judgment because there's no jury, Goldstein said. Arbitrators figure they "might as well have a hearing." Going all the way to an arbitration hearing when summary judgment might have been the alternative can sometimes be "as expensive and inefficient as going to court," Kevin White, partner at Hunton Andrews Kurth, told HR Dive.
Employers that are concerned about fairness, talent retention, DEI and public reputation can choose to dispense with mandatory arbitration altogether, giving employees a choice in how they manage complaints. Google ended the practice in 2019, for example.
Companies hesitant to pull the policy entirely could follow Goldstein's advice and end the use of nondisclosure agreements.
What comes next?
#MeToo was a once-in-a-lifetime movement, so does it stand to reason that the political and social push to eliminate mandatory arbitration will end with cases of sexual assault and sexual harassment?
It's hard to say.
Many members of the Democratic party have signaled a broader interest in ending the practice entirely. Last March, Sen. Richard Blumenthal, D-Conn., introduced the Forced Arbitration Injustice Repeal (FAIR) Act alongside 39 other senators, referring to the mandatory arbitration process as "rigged" against workers. The bill also applies to mandatory arbitration in consumer, antitrust and civil rights cases.
The FAIR Act has not moved since its 2021 introduction, and it has been introduced repeatedly, without much action, since 2017. But enthusiasm for the #MeToo bill may add momentum. In addition, the bill has garnered support from a long list of advocacy groups, including Public Citizen, the National Organization for Women and the Disability Rights Legal Center.
In announcing its support of the #MeToo bill, the White House made clear its own commitment to tackling mandatory arbitration more comprehensively. "The Administration … looks forward to working with the Congress on broader legislation that addresses these issues as well as other forced arbitration matters, including arbitration of claims regarding discrimination on the basis of race, wage theft, and unfair labor practices," a memo from the president's executive office stated.
"I think you're going to continue to see the Biden administration try to broaden the ban on arbitration and employment," White said. "And I think you're going to continue to see the states try to enact legislation … I think they will try to get into discrimination generally, and into wage and hour. But I think it's going to be at the legislative level that the attack is made. Court cases have generally not been very successful. Courts typically uphold mandatory arbitration under the FAA."
But even without legislative force, corporations may decide to excise the practice on their own. The balance in the labor market has shifted, and employers are looking for ways to appeal to workers. "In this labor market, people are really trying to attract talent," Goldstein said. "And anything that is a barrier to getting people on board … employers are going to throw out."
Google's shift away from the practice followed pressure from employee activists, who staged a walkout of approximately 20,000 employees and formed their own action group. Similar actions from employee activists at other companies could cause the dominos to start to fall more quickly but without major pressure, "I don't see it going too far too fast," Del Rey-Cone said.
"These cases can be rather intense emotionally, they can have salacious facts," she continued. "There's just all sorts of things that go with an employment claim that makes it very alluring to an employer to know they're protected from that splash of press, which can be a very big distraction from the actual legal proceedings, [and] can be a big distraction from a business perspective."
Understanding periods is everybody's business - especially your boss's
In a way, it's a tricky story to tell - for legal reasons, there can be no names attached, and very little detail either. What we do know, goes like this:
In 2020, an office-based client services worker, Sarah*, took a day of sick leave due to a menstrual-related illness. We don't know what the exact symptoms were that led to Sarah's sick day, but period symptoms can include intense and painful cramping, migraine, body aches, fever, back pain - all of which will sound familiar to anyone, man or woman, who's had the 'flu. Symptoms for those who have endometriosis, polycystic ovary syndrome or a list of other conditions can be more severe.
Sarah claims she was criticized by her manager for taking the sick leave day. Understanding her rights under Aotearoa New Zealand's anti-discrimination laws, she laid a complaint with the Human Rights Commission (HRC). At that point, when a complaint has been laid, the HRC will help facilitate mediation between the parties if both agree to it (mediation is voluntary). If that's not taken up for some reason, or does not result in a resolution.
As OHRP solicitor Nicole Browne told me, there are pretty stringent rules in place for this; the OHRP has a responsibility to make good use of public money, which means only the important cases make it through.
Browne described Sarah’s case as “a really clear case of gender discrimination”.
“We are unlikely to take a case that will lose unless there is a really strong public interest.”
So, why was Sarah's case such an important one? Let's deal with the big picture first.
Periods are a common experience, yet rarely talked about. As one blogger put it in 2020: “Periods are a bodily function just like being hungry or thirsty. When you’re hungry, you eat. When you’re thirsty, you drink. When you get your period, you’re shamed.”
The shame society places on periods applies to almost everything that comes out of a woman's body - sweat, leaking breast milk, etc. - but menstrual blood tops the list. I'd love to say I have confidently and openly marched up to a colleague and asked in a normal voice (instead of a furtive whisper) whether they have a spare tampon, but that would be a lie.
This is a nonsensical taboo, based on the belief - believed to have been first referenced in writing in the Latin Encyclopedia in 73 AD - that bleeding (but only that kind of bleeding) is dirty and unhygienic. Which it is not. But consider how incredibly sticky that myth has been. Sticky to the point that only in very recent history has period poverty, and sick leave options, been talked about publicly at all. There are fathers and brothers and sons and boyfriends who will still feel too uncomfortable about buying tampons and pads for the women in their lives, as if a wrapped and boxed package on a supermarket shelf was, in itself, somehow dirty.
Not their fault. The patriarchal society's fault. But bizarre.
We are beginning to tackle this stigma and its resulting effects. As of the middle of last year, schools could access free period products for their students through the Ministry of Education. The ministry's website notes as of June 2021, 1619 schools and Kura had joined the scheme, "meaning almost 90 percent of estimated students who have periods are in schools that have opted-in."
Workers in the sector I've spoken to say the scheme is working well, and will be keeping students in school who might otherwise be missing classes because there's no money for pads or tampons.
There are many working women who wish their organisations would follow this lead, and some women-led workplaces do, but we can't all work for female-run organisations.
Which leads to situations like Alisha Coleman's, in 2017. Coleman, a 911 call-center worker in the US, sued her employer under America's Civil Rights Act after being sacked for leaking period blood at work.
Coleman, who was menopausal and experiencing heavy and unexpected periods, settled with her employer after the American Civil Liberties Union appealed a court ruling that she had not proved sex discrimination under Title VII of the Civil Rights Act.
It's impossible to read Coleman's case without picturing the distress she must have felt at the time. But Coleman nailed it in her statement after the case was settled.
“I hope my speaking out will encourage other women who believe they have suffered discrimination in any form to come forward.”
And so, back to Sarah, whose own settlement with her former employer is important for the same reason.
Women in the workplace may not experience a massive telling off, but a series of microaggressions." But it says to people like Sarah, "your symptoms are not worthy of sick leave. It's ingrained sexism”.
The idea of period leave (as opposed to 'normal’ sick leave) is still a divisive one. But organisations who have adopted it, in Australia and elsewhere, have described it as a "win-win" situation.
Workers feel more supported and productive, and importantly, they do not abuse the ‘privilege’. The Victorian Women's Trust's 13 women employees, for example, took only eight days of period leave between them in the three years after the scheme was introduced at the trust in 2016. Women know when their symptoms make going to work a bad idea, and they should be trusted to make that call.
For people who get periods (and I include those who were born female but no longer identify as such), Sarah's case is important because it calls out the belittling of women for things they can't, biologically, control.
And it raises the flag for others in her situation, who might not know there is a way of fighting back.
No one should have to choose between a paycheck and a healthy pregnancy.
Each year hundreds of thousands of workers are faced with an impossible choice: risk losing their jobs or endanger the health of their babies. Experts estimate that 250,000 pregnant workers are denied accommodations related to their pregnancies each year. This is likely a conservative number. Many others have been fired or pressured to leave their positions.
No one should have to choose between a paycheck and a healthy pregnancy. This failure to protect pregnant workers is an egregious injustice and moral failing of our country. Thankfully, there is something Congress can do. There is growing support in Congress for the Pregnant Worker’s Fairness Act (H.R. 1065/ S.1486), a bill that would ensure that workers can access temporary and reasonable accommodations—such as a stool to sit on, a schedule change, or a break from heavy lifting—while pregnant.
Current Legal Protections Are Not Enough
A law protecting pregnant workers already exists, but it is not sufficient. In 1978, Congress passed the Pregnancy Discrimination Act. It bans discrimination against pregnant women in the workplace by requiring employers to treat pregnant workers in the same way as those who have a similar inability or ability to work.
This bill would help fill the gaps of the Pregnancy Discrimination Act, allowing people to work and thrive at their job without putting their health in danger. It also has important implications for racial justice.
This law is not enough. It places the burden on the pregnant employee. Suppose a worker needs a medical accommodation for their pregnancy. In that case, they must first determine if someone else in their workplace “has a similar inability or ability to work” and whether they were provided an accommodation before accessing it themselves. This creates a barrier for workers which does not exist for others who need medical accommodation, such as workers with disabilities.
This bill would help fill the gaps of the Pregnancy Discrimination Act, allowing people to work and thrive at their job without putting their health in danger. It also has important implications for racial justice. Black and Latina women in low-wage positions are disproportionately impacted by pregnancy discrimination. In addition, the maternal mortality rate for Black women is three times higher than white women. The accommodations that PWFA provides would help to protect the health of mothers and their babies.
The Opportunity Before Congress
Since the 1978 Pregnancy Discrimination Act is inadequate, advocates have turned to Congress for more expansive protections. The Pregnant Workers Fairness Act would ensure that pregnant workers are treated fairly by prohibiting workplaces from firing them or pressuring them to leave their job for needing reasonable accommodations for pregnancy. It includes adjustments stemming from pregnancy, childbirth, or a related medical condition.
If congressional champions can offer PWFA as an amendment to the appropriations bill, it has a good chance of becoming law.
PWFA passed the House in May 2021 by an overwhelmingly bipartisan majority (315 - 101). It has been introduced in the Senate (S.1486) and currently has 11 co-sponsors—five Democrats and six Republicans.
We may soon have an opportunity to advance this critical legislation by attaching it to the omnibus spending bill currently being negotiated in Congress. If congressional champions can offer PWFA as an amendment to the appropriations bill, it has a good chance of becoming law.
Pregnant workers need our help to ensure that they don’t have to choose between pregnancy and a paycheck. This legislation has momentum and strong bipartisan support. Now is the time to weigh in with your elected officials.
Before Blaming Your Workplace, Look in the Mirror and Make Sure You’re Not the Problem
When anyone blames their workplace environment for getting in the way of their success, I often ask them to consider a possibility that most people have a hard time suggesting: “Look in the mirror first and make sure you’re not being your own worst enemy.”
When anyone blames their workplace environment for getting in the way of their success, I often ask them to consider a possibility that most people have a hard time suggesting: “Look in the mirror first and make sure you’re not being your own worst enemy.” It’s always easier to go the politically correct route of automatically agreeing with anyone seeking to cry on our shoulders as they blame others for their career issues, but the fact is, there’s a likelihood that this approach may be doing them a huge disservice.
While there is no doubt that there are occasions when the environment does get in the way, and some women and men suffer all sorts of serious discrimination, bias and workplace challenges, a lot has already been written about those cases. This article is not related to those cases. Specifically, I want to share my personal experience and insights on the countless other cases that are reported on less frequently, a good number of which I’ve personally witnessed firsthand throughout my career. I’m speaking about perfectly qualified people who, for a variety of reasons, are the only thing standing in the way of their own progress and they blame others rather than look within themselves.
My life’s experience is a great case in point. I started my real estate career as the executive assistant to a man revered as one of the commercial real estate industry’s smartest and toughest businessmen. By virtue of my hard work, determination and desire to learn and grow professionally, I received multiple promotions over the years and today lead his company, which today has a $1 billion investment portfolio.
In my experience overseeing all day-to-day operations for Terranova’s diverse retail portfolio and personally completing over $1 billion in retail leasing transactions, and most recently as the company has transitioned to become an opportunistic alternative investment firm in dynamic industries as life sciences, technology, health care, petroleum and agriculture, I have seen and learned a lot. Most notably, I have acquired an in-depth understanding of how the attitudes we choose can determine our destinies. One person can walk into a room and dominate the room, while another similarly situated person can feel threatened and uncomfortable in that room. I am passionate about this topic out of my desire to help mentor and guide people, since there are so many good people not living at their full potential and not aware of the cause of the problem or how to fix it.
So, how did I achieve my leadership role? It wasn’t luck, and no one sprinkled magic dust on me. It was hard work, perseverance, grit, and focusing on the goal without getting emotional about any deal. It was about having poise under pressure and being ready to stand my ground, articulate my points and, when necessary, respectfully contradict even the most intimidating of personalities. And, notably, these allegedly tough executives usually ended up agreeing with me.
It’s unfortunate that today’s litigious workplace environment has made people so overly sensitive to these issues that discussing these topics can make us targets for allegations of everything from insensitivity to discrimination. Yet, despite the risk of all this, I will share some guidance that has taken me a lifetime to learn:
Again, I’m not suggesting that anyone should ignore situations of legitimate discrimination or wrongdoing. I’m merely suggesting that we always ask ourselves, before drawing any conclusions, whether we are seeing things through a clear lens and not mischaracterizing situations or missing opportunities due to our own limiting beliefs. Indeed, when we operate from a place of power rather than fear, and when we respond rather than react, we put ourselves in the best position to achieve our goals.
- Find a good mentor. In my career, I’ve been fortunate to count on mentors such as Terranova’s CEO Stephen Bittel, as well as my predecessors Trish Blasi and Beth Azor, who were both Terranova presidents. Find a mentor who’s a warrior—someone who keeps it real, motivates you, and doesn’t only say what you want to hear. A good mentor will “say bad stuff to your face, and good stuff behind your back.” A good mentor will have proven ability to survive and thrive in the same corporate environments in which you are seeking to play.
- Focus on the solution, not the problem. I don’t even like to use the word “problem,” because in my view, it’s just a “situation telling us what to do next.” Behind any obstacle there are opportunities, and it’s wise to take on the mindset of a hunter, focused on finding and seizing the bright spots in any environment.
- Pay it forward. Whatever you are doing, whether you’re answering the phone or entering an elevator, make sure to understand who you’re dealing with, and what you can do to help them. Never hesitate to help anyone around you. I’ve found that life takes unexpected twists and turns, and people always give preferential treatment to those who always treated them well even from the infancy of their careers. This has always been a strong part of Terranova’s DNA, with Stephen leading by example by generously donating his personal time, talents and treasure to help our team and community.
- Have the right mindset. As someone living with a disability (Parkinson’s), I know firsthand that mindset is everything. There are many days when I could have chosen to stay in bed with a victim mentality, feeling sorry for myself and blaming the world. Yet, I rose to the occasion and never let my condition stop me from getting stuff done. Indeed, the lens through which we choose to see the world determines our ability to properly identify and seize opportunities before us. Therefore, choose your lens carefully because it will determine your destiny. This also applies to your workplace in general—I’ve seen some people succeed in the same workplace that others have claimed was toxic. It’s the reason some people can work extremely well with one person, while others find that same person difficult or impossible to work with. It’s important to be comfortable feeling uncomfortable, because the road to personal growth and success requires it. Oftentimes, we have adverse reactions to people as a result of our own fears and insecurities, and in those cases, avoiding those situations we cause us to miss out on learning valuable lessons. Rather than run from situations that scare us, we should ask ourselves why we are having those reactions, and then run toward them and face them. Many times, that’s exactly where the best opportunities for growth and success are awaiting us!
- Read! Stay on top of your industry’s trends but also read things that challenge and inspire you personally. Choose your reading carefully though. I’ve found many so-called self-help books come from a victim mentality and can do more harm than good. Never been a fan of phrases like “Girl Power,” which I find silly since we shouldn’t need to remind anyone that we are powerful or that our power is related to our gender. Focus on books that remind you of all the power you have to shape and determine your future. I’ve always appreciated practical business books like ”First, Break all the Rules,” and more recently, enjoyed reading “Untamed.”
- Don’t take anything personally! The less emotion we have in business, the better. In fact, in any confrontation or negotiation, the most emotional party tends to lose. Leave your ego at the door and focus on working collaboratively to get the job done. If you haven’t already, you must read “The Four Agreements!”
- Come from passion, not fear. When we come from passion, we are tapping into our highest energy vibration, and we are focusing our efforts on achieving our goals rather than protecting ourselves from imaginary demons. I often compare it to riding a bike—keep your gaze fixed steadily on the path where you “do” want to go rather than on the obstacles or distractions along the road. If you stare at the obstacles, you’ll steer your bike straight into them!
- Be ready for confrontation. Confrontations are often necessary to get to the next stage of any relationship. It’s never comfortable or pleasant, but you have to do it. Get comfortable being uncomfortable and facing tough conversations from a place of faith that everything will work out as it should, since you are doing your best and coming from a place of power rather than weakness.