APRIL DIVERSITY, EQUITY, AND INCLUSION UPDATE
APRIL DIVERSITY, EQUITY, AND INCLUSION UPDATE
April 5th, 2022
Matt Glowacki, Diversity Equity & Inclusion Chair
Jefferson County HRMA & WI SHRM
How would HR handle the Oscars slap?
After comedian Chris Rock made a joke comparing actress Jada Pinkett Smith to G.I. Jane, her husband Will Smith ascended the stage. Believing his wife’s shaved head – a result of alopecia, an autoimmune disorder that causes hair loss – wasn’t a laughing matter, the Hollywood superstar slapped Rock in front of the world. Then, he sat back down and shouted, “Keep my wife’s name out of your (expletive) mouth!”
Attendees were stunned, and viewers at home fled to social media to wonder if it was part of the show. Smith wasn’t ejected from the event, and Rock declined to press charges, so there are still skeptics who claim the incident was a publicity stunt. Smith, who went on to win the Oscar for Best Actor later in the night, has since taken to Instagram to apologize to Rock.
People are still debating the legal ramifications, though, considering that Rock could sue Smith for battery under California law. Although the Academy of Motion Picture Arts and Sciences wouldn’t be the employer in this situation, Brian L. Lerner, partner at Fort Lauderdale, FL-based Kim Vaughan Lerner LLP, considers the incident an interesting workplace discussion for HR leaders.
“Almost every company has anti-violence policies in their handbooks,” Lerner told HRD. “Effectively, he’s at a work event and he slapped someone. The simple act of hitting someone at work would probably result in Will Smith being fired.”
Conversely, Lerner proposes, what if Rock was a coworker? Would he be fired for making an inappropriate joke?
“What if Will Smith is your number-one salesperson generating 52% of the company’s revenue and you have a zero-tolerance workplace violence policy,” Lerner says. “Let’s assume Chris Rock, a coworker, knows about Will Smith’s wife’s medical condition and still makes the joke. Do you still fire Will Smith knowing how important he is to the company? Does the fact that Chris Rock knew about the condition mitigate or lessen the severity of the punishment? Most companies would say making fun of someone’s medical condition could be a fireable offense under their anti-discrimination policy.”
Even if a company has a zero-tolerance policy on violence in the workplace, it’s still best to conduct an investigation because there’s always two sides to the story and the truth lies somewhere in between, according to Brenda Neckvatal, HR professional, best-selling author and CEO of Aerial Recon Training by DRL Products in Fort Monroe, VA.
“An investigation will prevent a company from engaging or making a decision based off of adverse impact,” Neckvatal told HRD. “On the surface, the company appears to be doing the right thing, but after a deeper look into the details, it may inadvertently be discriminating against an employee or a group of employees.”
“There’s usually some form of history that hasn’t been communicated or expressed, which is often the driver behind any type of physical violence,” Neckvatal added. “In addition to that, not every employee is honest about their background. If they have a history of violent and criminal action, and employers aren’t doing the necessary due diligence by conducting a lawful background check during the interview process, then the company has exposure.”
In this scenario, if Smith had a history of violent altercations, Lerner says Rock could make a claim against an employer for negligent retention. “If the company kept Will Smith and gave him a final written warning and he had to go to anger management, the company may be able to figure out a way to keep him,” Lerner says.
Of course, some HR leaders see the incident as cut and dry.
“It was a publicity stunt, so HR would have been informed about it and would know not to freak out,” Trav J. Walkowski, partner and chief people officer at Milwaukee-based HR consultancy Employmetrics, told HRD.
“If it were real, both would be terminated immediately.”
From Hollywood to the workplace, Black women are more severely affected by alopecia—and more likely to have it
Alopecia areata is gaining more attention as a medical condition following the now infamous 94th Academy Awards ceremony on Mar. 27 where Will Smith went onstage and slapped the presenter, comedian Chris Rock, for making a joke about his wife’s baldness.
Jada Pinkett-Smith has been vocal about her ongoing challenges with alopecia for years, breaking the silence on her struggles with hair loss in a Red Table Talk episode in 2018. Additionally, the actress made an Instagram video in 2021 explaining her condition that received over 2.6 million views.
What is alopecia?
Alopecia areata is a disorder that causes the affected person to lose their hair, usually in round patches.
It is classified as an autoimmune skin disease and generally falls under three different types—alopecia universalis, alopecia totalis, and alopecia areata. Alopecia areata is relatively common and it affects up to 6.8 million people in the U.S. alone with a lifetime risk of 2.1%, as stated by the National Alopecia Areata Foundation. Alopecia is the only form of hair loss that affects children and young adults, citing Nature. And while it is associated with baldness on the scalp, the condition can also affect the eyelashes and the eyebrows, and other facial hair.
One third of Black women will get alopecia during their lives
“Alopecia areata and age-related hair thinning are two forms of alopecia that are fairly common and occur equally in all ethnic groups,” says Dr. Crystal Aguh, an associate professor of dermatology who specializes in alopecia and the director of the Ethnic Skin Program at the Johns Hopkins School of Medicine. “However, hairstyle related alopecia like traction alopecia, for example, occurs almost primarily in Black women. And it's a very, very common form of hair loss affecting up to one third of Black women. Many Black women will experience some form of alopecia in their life, whether it's age-related, autoimmune, hairstyle-related, or other forms. And so alopecia is somewhat unfortunately normalized in our community just because so many of us deal with it at some point in our lives.”
Central centrifugal cicatricial alopecia (CCCA) or “hot comb alopecia,” in particular, predominantly affects Black women, with between 2.7% to 5.7% of women of African descent living with the disease. It is the number one cause of hair loss in Black women and leads to hair follicle destruction, scarring and permanent hair loss. And while genetics play a factor into the disorder—people with alopecia are more likely to have family members with alopecia and other autoimmune disorders—so do grooming and hairstyling practices. CCCA has been associated with hot combing and hairstyles that promote excessive tension like tight braids and hair weaves. Commercial hair straighteners—such as chemical perms—have also been linked with alopecia for women in the Black community.
How does hair discrimination put Black women at risk of developing alopecia?
Alopecia can be a negative result of Black women overmanipulating their hair in an effort to retain or get corporate job opportunities.
Hair length and texture are markers of femininity in Western culture, with women with more feminine Eurocentric hairstyles—long and straight hair—being deemed more professional and more likely to succeed in corporate America.
“As Black women, we have a much harder time achieving what's considered feminine on top of the fact that Black women are already considered to be less feminine than other ethnic groups,” Aguh says. “And so hairstyles play a big role and that's one of the reasons that we see a heavy reliance on the use of extensions and weaves to help achieve this femininity if we can't do it ourselves. It ends up being a big distinguishing factor socially for a lot of women in a way that it wouldn't be for Caucasian women. It's been used as social capital in a way that can be very harmful, I think, for our community.”
According to a 2019 study conducted by the JOY Collective, 80% of Black women said they believed they had to alter their natural hair to gain acceptance in the office.
“Every day, Black folks suffering from alopecia and baldness are being robbed of employment opportunities, education, and dignity because employers and institutions can cloak their racism in dress code policies and vague concepts like ‘professionalism’ that were designed to shut us out,” says Arisha Hatch, vice president and chief of campaigns at Color Of Change.
As a result of “occupational traumatic hairstyling,” and attempting to fit into Eurocentric beauty standards, Black women can permanently damage their hair and scalp and end up with hair loss conditions like alopecia, as well as accompanying psychiatric conditions like depression and anxiety.
What should we do about it?
Hair is an important identity marker in the Black community with numerous studies showing the correlation between healthy self esteem in Black girls and women and positive self-perceptions of their hair. The idea that personal style and grooming choices have negative educational and employment consequences for Black people in ways that are not consistent for white individuals is the driving force behind The CROWN Act, which bans hair discrimination.
“Every day in this country, Black people are policed, humiliated, and suspended because employers and peers want to control our expression with discriminatory codes designed to negate who we are,” Hatch says.
In her opinion, there is only one thing to do—pass the CROWN ACT and ban hair discrimination once and for all.
“Discrimination is no joking matter,” Hatch told Fortune. “Ridding our schools, workplaces, and communities of hostile hairstyle discrimination and respecting the diversity of Black women will not only ensure greater equity for Black people, but will create a world in which Black women can be themselves without fear of repercussion.”
A Message from EEOC Chair Charlotte A. Burrows on Women’s History Month 2022
March is Women’s History Month – a time to celebrate women’s contributions to culture, society, and history that are too often overlooked or undervalued. At the U.S. Equal Employment Opportunity Commission (EEOC), we recognize that women’s contributions – including in the workplace – are as critical today as they were at our nation’s founding. And thanks to enormous progress toward equal opportunity for women, within the last several decades, women not only have effectively participated in workplace reforms to secure better pay and employment benefits, but also have increasingly served in leadership positions.
While women – who lost 11.9 million jobs in the first few months of the pandemic – experienced the steepest employment losses, many Black and Hispanic women faced additional hardship as the sole or primary financial providers for their families. In response to these economic and employment challenges, the EEOC is partnering with the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) on a multi-year collaboration called “HIRE, a Hiring Initiative to Reimagine Equity.” Through HIRE, we aim to identify innovative and evidence-based practices that will help women of color and other workers from underrepresented communities gain equal access to good jobs and help employers access talent.
Additionally, many women who left the labor force due to the pandemic were compelled to do so based on caregiving responsibilities. In March 2021, almost 1.5 million fewer moms of school-aged children were actively working than in February 2020. Those caregivers who remained employed often found themselves balancing family obligations with stressful job demands such as disruptive changes in schedule or work location. As a result, too many caregivers – primarily women – are more vulnerable to employers’ negative assumptions and discriminatory practices. The EEOC recently published technical assistance on how discrimination against applicants and employees with caregiving responsibilities during the pandemic may violate federal employment discrimination laws.
As we work to address these current challenges, we take encouragement from the Commission’s history of successfully championing women’s equality in the workplace. Since its inception, the EEOC has been involved in major cases that helped combat sex-based discrimination, including pregnancy discrimination and sexual harassment in the workplace.
The following are a noteworthy few:
These victories remind us that change is possible and that history can indeed provide healing and hope. In the words of former First Lady Michelle Obama, “No country can ever truly flourish if it stifles the potential of its women and deprives itself of the contributions of half of its citizens.” The EEOC has played a critical role in advancing gender equity to ensure our economy has the full benefit of the many, diverse talents of American workers, and we remain committed to building inclusive workplaces where women can fulfill their potential and contribute to our country’s economic success.
- Neal vs. American Airlines and Colvin vs. Piedmont Aviation – In the early 1960s, the EEOC tackled pregnancy and sex discrimination in the airline industry on behalf of female flight attendants. In 1968, our agency issued its opinions in Neal vs. American Airlines and Colvin vs. Piedmont Aviation, which held that firing female flight attendants who chose to marry violated Title VII. These EEOC decisions rejected discriminatory assumptions that women who worked as flight attendants should remain unmarried “to avoid the stress on home and family life which would be caused by married stewardesses from their homes.”
- Meritor Savings Bank – Citing guidance from the EEOC, the Supreme Court held in 1986 that sexual harassment is a form of sex discrimination prohibited by Title VII.
- AT&T/Western Electric Telephone – In 1991, the EEOC reached one of its largest cash settlement cases, nearly $66 million dollars, on behalf of 13,000 AT&T/Western Electric Telephone workers who were denied company benefits when they became pregnant. At that time, the company required women to take unpaid maternity leave at the end of their sixth or seventh month of pregnancy and allowed them only 30-days credit toward their seniority while employees on disability received full credit.
- Mitsubishi Motor Manufacturing of America, Inc. – In 1998, the EEOC settled a suit alleging a large-scale pattern and practice of sexual harassment at Mitsubishi’s normal plant for what was then the largest settlement in history – $34 million.
- EEOC v. Dial Corp – In a 2006 case, the EEOC alleged, and the U.S. Southern District Court of Iowa found, that Dial’s use of a physical ability test to screen job applicants for a meat processing plant violated Title VII because it had a disparate impact against women, and Dial failed to justify it as a “business necessity.” The EEOC further alleged, and the jury concurred, that Dial’s continued use of this test, even after the company realized it was screening out women, constituted intentional discrimination in violation of Title VII.
ABCs of employment law: Discrimination
Just about everybody, whether they are an employer or not, knows that it is against the law to "discriminate" against an applicant or employee. But to "discriminate" means only to "differentiate" or "distinguish."
We do that all the time, don't we? And there is nothing illegal about it. I "discriminated" last night when I decided which of the leftovers in my refrigerator I was going to reheat for my supper.
That broccoli still sitting in the fridge will never forgive me.
Even in the workplace, certain forms of "discrimination" are legal. For example, an employer can legally "discriminate" against people with insufficient job-related experience, or who don't show up for work on a regular basis, or who embezzle funds. Fair enough.
It's even ok to discriminate unfairly in some circumstances. When the boss promotes his dolt of a son to Vice President -- even though there are dedicated and competent employees who aren't relatives who are better suited to the job -- that is unfair but legal. If a supervisor gives all the cushy jobs to the employee he's having a consensual affair with, that is unfair but legal.
"Discrimination" is illegal under federal law only if Congress says it is. That's why you can generally treat people differently, and even play favorites, without breaking the law. (Not that we're recommending that.)
Here is the discrimination that Congress has said is illegal:
Race. Treating someone differently because of their race.
Sex. Treating someone differently because of their sex, because of pregnancy, or because of their sexual orientation or gender identity. (The U.S. Supreme Court decided in 2020 that sexual orientation and gender identity should be included in the definition of "sex.")
National origin. Treating someone differently because of the country they came from. For example, refusing to promote into management positions anyone from Latin America.
Religion. Treating someone differently because of their religion, religious beliefs, or lack of religious belief. Employers must also make reasonable accommodations for employees' religious needs that conflict with work requirements, unless doing so would be an "undue hardship." (We will get into reasonable accommodation later.)
Color. This is exactly what it sounds like -- treating someone differently because of the color of their skin. This could include discriminating against persons of color -- regardless of their race or nationality -- or discriminating against those who don't have "enough" color. It also happens sometimes among people of the same race. For example, there have been a number of lawsuits where a Black employee who is dark-skinned claims that she was treated unfairly by a Black supervisor who is light-skinned.
Discrimination based on race, sex, national origin, religion, or color violates Title VII of the Civil Rights Act of 1964. We refer to the law as "Title VII."
In addition to Title VII, there are other federal laws that prohibit employment discrimination.
Disability. The Americans with Disabilities Act, enacted in 1990, makes it unlawful for an employer to discriminate against a "qualified individual" who has a disability or who has an "association" with a person with a disability. If the person with the disability is an employee or applicant, he or she must be able to perform the "essential functions of the job" with or without a reasonable accommodation.
The ADA protects people with actual disabilities, perceived disabilities (for example, the employer incorrectly believes that the person is an alcoholic), and a history of a disability (for example, a person who had cancer but it is in remission).
"Association" claims are not common, but a classic scenario involves an applicant or employee who does not have a disability but who is married to or the parent of someone with a disability. The employer might refuse to hire the applicant because it fears that the family member will cause its group health insurance rates to go up. Or the employer doesn't let the employee have time off to care for the family member, even though it allows the time off to other employees for other reasons.
Genetic Information. The Genetic Information Nondiscrimination Act, which took effect in 2009, prohibits employers from requesting employees' "genetic information" or discriminating against employees based on their "genetic information." This is more complicated than it sounds, so we will get into it in a future post.
Age. The Age Discrimination in Employment Act, enacted in 1967, prohibits discrimination based on age for individuals who are 40 years old or older. It gives no protection to people under age 40, and there is no upper limit. The latter means that an employer can't terminate even a 95-year-old employee because of age. More realistically, the ADEA also prohibits mandatory retirement based on age, with some limited exceptions.
In addition to prohibiting discrimination ("differential treatment"), court decisions dating back to the 1980s have said that the anti-discrimination laws also prohibit harassment based on these characteristics.
There is also a form of discrimination called "disparate impact," which deserves its own post, so we'll get to that another time.
Title VII, the ADA, and the GINA all apply to employers with 15 or more employees. The ADEA applies to employers with 20 or more employees.
The Equal Pay Act prohibits sex discrimination in pay or compensation. The Equal Pay Act applies to virtually all employers, regardless of size. Pay discrimination based on sex also violates Title VII, as does pay discrimination based on race, national origin, religion, or color.
Union sympathies or activity. Under the National Labor Relations Act, enacted in the 1930s, it is an unfair labor practice for an employer to discriminate based on an employee's sympathy for unions or for the employee's union-related activity or membership.
Title VII, the ADA, the GINA, the ADEA, and the Equal Pay Act are all enforced by a federal agency known as the Equal Employment Opportunity Commission. An applicant or employee who wants to sue for discrimination under any of these laws is first required to file a "charge of discrimination" with the EEOC. The EEOC is supposed to investigate, and it often tries to get the parties to resolve their differences through mediation or (if the EEOC has already found that the employer violated the law) conciliation. If the parties don't settle, the EEOC issues a "Notice of Rights" to the "charging party" and the employer once the EEOC is through with its investigation. The "charging party" has 90 days after receiving the notice to file a lawsuit in federal court.
The EEOC can also choose to sue the employer itself.
Once in court, a plaintiff who wins can normally get back pay and back benefits, reinstatement (if terminated), an injunction (generally, a court order telling the employer it must stop engaging in discriminatory acts), court costs and attorneys' fees, and up to $300,000 in "compensatory" (emotional distress) and punitive damages, depending on the size of the employer. Theoretically, the employer can get attorneys' fees if it wins, but courts will almost never award attorneys' fees to employers. On the other hand, employers can recover their court costs if they win.
It's important to note that many states, and even cities and counties, have their own anti-discrimination laws. Sometimes those laws give employees more rights than the employees have under federal law. This is why your lawyer tells you that employers should be aware of any applicable state or local laws where they operate.
2021 EEOC Charges Show Decline in Most Categories
The number of employment discrimination claims filed with the U.S. Equal Employment Opportunity Commission continued a steep decline in 2021. At the lowest level in at least several decades, data from the past two years suggests that COVID-19 contributed to the reduction. But a review of 2021 EEOC charges reveals some interesting trends that may be unrelated to the pandemic.
FY 2021 EEOC Charges
The latest annual data refer to the 12-month fiscal year ending September 30, 2021. The EEOC received 61,331 charges of employment discrimination during this period. The charges span several federal laws, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Equal Pay Act, and the Genetic Information Non-Discrimination Act (GINA).
More than half (56%) of the charges included a retaliation claim, often in addition to claims based on other protected characteristics.
Here is the percentage of total charges that asserted discrimination based on those other characteristics:
Totals exceed 100%, as charges can allege more than one category.
- Disability – 37.2%
- Race – 34.1%
- Sex – 30.6%
- Age – 21.1%
- National Origin – 10.1%
- Color – 5.7%
- Religion – 3.4%
- Equal Pay – 1.4%
- Genetic Information – 0.4%
Harassment charges, which can be based on any protected characteristic, also continued to fall in FY 2021, even as a percentage of all claims. Of the total EEOC charges filed last year, 21,270 (34.7%) included a harassment claim. In 2020, 35.9% of charges included a harassment allegation.
Since Democratic administrations are seen to be more employee-friendly than Republican ones, it is interesting to review these data in line with the party in control of the White House (and, correspondingly, the EEOC). Annual EEOC charges began to decline following the transition from the presidency of Barack Obama into the Trump Administration. After consistently measuring near or above 90,000 cases per year under President Obama, total EEOC charges have declined each year since Donald Trump was elected. Of course, this now includes the beginning of Democrat Joe Biden’s presidency.
Sexual Harassment Charges in 2021
Claims of sex-based harassment fell to 10,035, down 13.1% from the FY 2018 peak sparked by the #MeToo movement. That number includes all charges alleging harassment related to one’s sex (treating people of one sex less favorably than others). The EEOC separately tracks harassment of a sexual nature.
Charges alleging harassment of a sexual nature also fell to the lowest level in the 25 years of data reported by the EEOC. The agency received 5,581 such charges in FY 2021, down 26.6% from 2018, and 29.7% from 2010.
What’s Going On?
While there are many possible explanations for the decline in charges, it is hard to ignore the potential impact of the COVID-19 pandemic over the past two years. With less workers on-site, there may simply be fewer opportunities for employees to feel harassed. A relative labor shortage could also be a factor. If employees who think they have been terminated from their jobs for a discriminatory reason quickly find new employment, they may be less likely to file a claim against their former employer. Enhanced unemployment benefits may have also generated a similar effect.
Of course, it would be great if the decline in charges corresponds to a reduction in actual instances of harassment or other discrimination. However, the data do not readily enable an analysis of whether that may be the case.
Digging Into the 2021 EEOC Charge Statistics
What may we be able to find out from the data on 2021 EEOC charges?
The EEOC reports 20,908 charges alleging race discrimination in FY 2021. That’s easily the fewest such claims in the history of the EEOC dataset going back to 1992, representing a 41.7% drop since the peak a decade earlier in FY 2010.
However, charges based on color discrimination have been increasing. In FY 2020, 5.7% of charges (3,516) included a claim of color discrimination–the highest level ever for such claims on a percentage basis. The reasonable assumption is that more employees are raising color discrimination claims instead of race discrimination. Yet, employees can claim discrimination based on both race and color. So, the increase in color discrimination claims doesn’t necessarily explain the reduction in race discrimination claims.
EEOC charges based on sexual orientation or transgender status have also increased in the past five years. This trend may not be surprising in light of a shift in judicial acceptance that these characteristics are protected under federal employment discrimination laws. The U.S. Supreme Court only held that Title VII prohibits discrimination based on sexual orientation and transgender status in June 2020.
Charges alleging discrimination based on sex, religion, age, and disability all declined in FY 2021 (as in 2017-2020). But the declines were roughly proportionate to the overall case volume.
The (hopeful) end of COVID-19 restrictions could affect EEOC filings next year. Likewise, Democrats will take complete policy-making control over the EEOC after the term of the next Republican on the commission expires in July 2022. This shift could lead to more aggressive enforcement of the federal employment discrimination statutes.
However, there is some room for optimism that whether due to COVID-19’s permanent impact on the workplace or other causes, harassment and discrimination are becoming less prevalent. Nonetheless, an overall trend is no solace if your company suffers the consequences of employment discrimination claims. As ever, employers should be proactive in preventing discrimination. Anti-harassment training is one viable approach. Effective hiring practices, training, and supervision are also critical.
Thousands of Covid-Related EEOC Charges Cite Disability Bias
The Covid-19 pandemic has led thousands of workers to file discrimination claims with the EEOC, with the majority related to disability bias on top of a surge of vaccine-related charges in the wake of workplace mandates, according to data provided to Bloomberg Law Thursday.
- More than 6,200 pandemic-related charges filed to agency
- Vaccine charges followed inoculation mandates for workplaces
Since April 2020 through December 2021, the U.S. Equal Employment Opportunity Commission has received roughly 6,225 Covid-related charges of discrimination under federal civil rights laws, the latest agency data show. In addition, the commission received more than 2,700 vaccine-related charges, most of which were in 2021 when vaccine requirements were introduced.
Charges filed to the agency are the first step for workers bringing discrimination lawsuits, including under the Americans with Disabilities Act, Title VII of the 1964 Civil Rights Act, and other anti-bias laws.
The Covid charges not related to the vaccine were relatively steady between 2020 and 2021, with nearly 3,150 in the first year of the pandemic, and 3,075 the following year.
About 66% of the Covid-related charges raised ADA violations, totaling around 4,125. Meanwhile, the ADA was cited in 300 of the 2,700 complaints tied to vaccines.
“Disability discrimination cases have been steadily rising, even before Covid,” said Jasmine Harris, a law professor at the University of Pennsylvania, who specializes in disability and anti-discrimination law. Harris said the jump comes as employers and workers are grappling with the “emergent questions about the virus.”
The EEOC didn’t immediately confirm which statutes were raised in the other vaccine charges, but companies have reported floods of religious exemption requests under Title VII. Employers enforcing vaccine mandates must reasonably accommodate a worker’s religion unless doing so would pose an undue hardship.
ADA lawsuits filed by workers during the pandemic have challenged denials of telework accommodations, and terminations or other adverse actions against those who contracted the virus. They’ve also tested when Covid-19 itself is a disability that triggers ADA protections.
The EEOC has brought at least three lawsuits related to disability bias and Covid, including against ISS Facility Services Inc. for allegedly denying a work-from-home accommodation, and two lawsuits in Texas against a pharmacy in Fabens and a coffeehouse in Ft. Worth that allegedly discriminated against employees with disabilities and rendered them vulnerable to serious illness if they contracted Covid-19.
“The COVID-19 pandemic has proved to be a civil rights crisis in addition to a public health crisis and economic crisis,” the EEOC said in a statement Thursday. “As we heard at our public hearing last year, it has disproportionately impacted people of color, women, older workers, individuals with disabilities, and other vulnerable workers.”
The agency continues to get questions stemming from the pandemic, including about re-entry to physical workplaces, vaccination policies, testing and masking requirements, and the future of work.
The EEOC previously issued guidance for employers and workers navigating Covid-19 issues.
That guidance made clear, for example, that not every person with the virus will qualify as disabled, but said the virus’s aftereffects should be considered under the ADA’s three definitions for a disability. Those cover actual physical or mental impairments that substantially limit a major life activity; an employer’s perception that a worker has a disability; or the worker’s record of impairment.
Harris said courts will continue to dissect novel questions about Covid-19 and disability discrimination. These include how to treat asymptomatic and symptomatic workers, which could parallel bias cases involving employees with HIV or AIDS. Other issues include what qualifies as a reasonable accommodation for people with disabilities, she said.
What constitutes a “direct threat” to the workplace will be another area, which will touch on employers’ decisions about safety measures and vaccine requirements as they consider disability accommodation requests, she said. They’d need to consider what exemptions are possible, and also protect the vulnerable workers as offices return to “normal.”
Employers can also raise a “direct threat” defense to fire or refuse to hire a worker if their disability poses a threat to the health and safety of other individuals.
Long-haul Covid will also pose a challenge. Employment attorneys previously said accommodations for long-haulers may be difficult to navigate.
Employers have found it difficult to navigate these issues in the last two years, said Aaron Goldstein, a labor and employment partner with Dorsey & Whitney LLP, adding that religious or medical exemptions from vaccine mandates have been a source of tension for employers.
The EEOC’s guidance on these topics has been general and limited, particularly on religious and medical accommodations, he said, and the agency should offer more for employers.
EEOC filing thousands of COVID-related charges against employers
Heads up, employers. While it might seem like COVID-19 is winding down, the EEOC is still taking action on COVID-related claims from employees.
According to data from the EEOC, between April 2020 and December 2021, the commission received over 6,000 discrimination claims that involved COVID-19.
Once the COVID-19 vaccine became widely accessible and employers began implementing vaccine mandates, the EEOC received about 2,700 charges, employees citing ADA violations and religious discrimination.
3 court cases
So far, the EEOC has brought three COVID-related disability lawsuits to court.
The first involved a health and safety manager at a manufacturing plant in Georgia. She had a heart condition, which increased her COVID-19 risk. She asked to continue working from home, but her employer fired her instead. The claim also alleges other employees were permitted to continue remote work after the plant reopened.
The other lawsuits are similar in that employers discriminated against employees at higher risk of COVID-19. Another case involved a pharmacy tech in Texas. The employee had asthma and wanted to wear a face mask to protect himself from the virus (the employer had a policy prohibiting masks).
The employee was harassed by co-workers for wearing a mask, and also sent home several times for violating the employer’s no-mask policy. The pharmacy tech ended up quitting.
In a different lawsuit in Texas, two disabled baristas were discriminated against after their employer refused to give them a reasonable accommodation in order to limit contact with customers. Instead, the baristas were told they could only come back to work once they were vaccinated and no longer needed an accommodation.
Continue to accommodate
A lot of lessons can be learned from these EEOC lawsuits. Even though COVID-19 restrictions and precautions are decreasing, employers still have a duty to accommodate susceptible employees.
As shown in the above cases, preventing employees from working in order to protect them from an illness isn’t an adequate accommodation. Employers should only deny an accommodation request if the worker would pose a risk of significant harm to themselves or others around them — and this risk can’t be eliminated or reduced with a reasonable accommodation.
Due to the sheer number of charges, employers can expect the EEOC to continue filing COVID-related lawsuits even as the pandemic continues to wane.
EEOC warns of higher risk of caregiver discrimination in changing world and workplace
The COVID-19 pandemic placed a spotlight on the demands of juggling work and personal obligations, including coordinating the demands of virtual learning, school closures, and other scheduling issues. Even as the pandemic evolves into an endemic, COVID-19 may still have a lingering effect on the lives of workers who need to work around hybrid school schedules and unexpected exposures and quarantines. Given these persistent challenges, the Equal Employment Opportunity Commission issued guidance earlier this month reminding employers that discrimination against a person with caregiving responsibilities may be unlawful under a number of federal employment discrimination laws, including the Americans with Disabilities Act, the Equal Pay Act, the Pregnancy Discrimination Act, Title VII of the Civil Rights Act, and the Family and Medical Leave Act.
Caregiver discrimination can take many forms
Caregiving responsibilities encompass care for children, parents, and other older family members, as well as close relatives with disabilities. Discrimination against caregivers violates federal employment discrimination laws to the extent it is based on a protected characteristic (i.e., sex, race, religion, age, disability, etc.) of an applicant or employee. It is also unlawful to the extent it is based on a protected characteristic of the individual for whom care is provided. Caregiver discrimination is also unlawful to the extent it is based on a class-based stereotype, i.e., women in caregiver roles.
The EEOC is clear that federal employment laws do not prohibit discrimination that is based solely on caregiver status. Discrimination occurs only if based on a federally protected characteristic.
Caregiver discrimination can take various forms – some blatant, and some more subtle. Examples of unlawful caregiver discrimination include:
- An employer refuses to hire a female applicant or refuses to promote a female employee based on assumptions that, because she is female, she will (or should) focus primarily on caring for her young children while they attend school remotely, or caring for her parents or other adult relatives.
- An employer penalizes female employees more harshly than similarly situated male employees for absences or missed deadlines due to pandemic-related caregiving duties.
- An employer declines to assign female caregivers demanding or high-profile projects that increase their advancement potential but require overtime or travel, or reassigns such projects from female caregivers based on its assumptions that such actions will make it easier for female employees to juggle work and personal obligations, or based on the belief that female caregivers cannot or would prefer not to work extra hours or be away from their families if a family member is infected with or exposed to COVID-19.
- An employer denies men leave or permission to work a flexible schedule to care for a family member with COVID-19 or to handle other pandemic-related caregiving duties but grants such requests when made by similarly situated women.
- An employer refuses an employee’s request for unpaid leave to care for a parent with long COVID that qualifies as a disability, while approving other employees’ requests for unpaid leave to handle other personal responsibilities.
- An employer refuses to promote an employee who is the primary caregiver of a child with a mental health disability that worsened during the pandemic, based on the its assumption that the employee would not be fully available to colleagues and clients, or committed to the job, because of the employee’s caregiving obligations for a child with a disability.
Other employer considerations
The EEOC also makes clear that employees do not have a right under federal employment laws to reasonable accommodations such as telework and flexible schedules just because they are caregivers. However, employees who are unable to perform their job duties because of pregnancy, childbirth, or related medical conditions must be treated the same as other employees who are temporarily unable to perform job duties. In addition, caregivers may have rights under the FMLA.
It’s important to note that employers are not required to excuse poor performance resulting from an employee’s caregiving duties. However, in an effort to minimize the threat of discrimination litigation, employers should ensure they are applying performance standards consistently to all employees, regardless of their protected status.
6 Statistics to Better Understand the Extent of Discrimination in the Workplace
Despite laws against it, discrimination still continues in the workplace, as we've seen in recent lawsuits against major companies for discriminatory practices based on race, gender, sexual orientation, and other aspects. Anti-discrimination laws, or even seeing other companies making headlines and losing brand equity, should get companies to put measures in place to prevent these toxic practices. Yet it still continues.
However, employees are not only getting the law involved, but taking to public forums like social media to alert the public to what’s going on behind closed doors. The power is shifting from employer to worker, so the time to end discrimination in the workplace is today.
The first step in ending workplace discrimination is knowing the extent of it. You may think it's not happening in your company, but it is more likely happening than not, according to recent statistics and surveys. In order to truly understand the pervasiveness of discrimination — and the failure to address it — here are some of the insights we found in our recent report on "The State of Workplace Discrimination."
55% have experienced discrimination at their current company.
Discrimination shouldn’t be present in any company, yet over half (55%) of workers say they've experienced discrimination at their current company. 61% have also witnessed discrimination happen to others, whether it be in their current workplace or a past one. We also found that while they're mostly witnessing discrimination happening from managers to employees, they've also seen discrimination happen between coworkers as well.
Other organizations are finding similar numbers. According to a new report by Glassdoor, 61% of U.S. employees have experienced or witnessed discrimination based on age, race, gender, or sexual orientation. The Williams Institute found that 45.5% of LGBT workers have experienced unfair treatment at work. Additionally, Gallup found that 24% of Black employees and 24% of Hispanic employees in the U.S. have experienced discrimination at work over the last year.
80% experienced discrimination while working remotely.
Even though much of the business world moved to remote work in the past year, discrimination didn't end just because people were no longer working in an office. Of those who said they experienced discrimination at their current workplace, 80% experienced discrimination over remote channels like video conferencing, chat apps, or over the phone. This is likely due to a lack of policies around remote work, the willingness to “speak your mind” more in online spaces, and the fact that remote work spaces are often unmonitored.
Only 54% who reported had their matter fully resolved.
Certainly, all these issues are being dealt with by these organizations? Not quite. We found that a little over half (54%) of the issues reported were fully resolved. This means the other half of employees who reported their issue but either saw it only partially resolved, or not resolved at all, may still be subjected to discriminatory behavior from either a manager or coworker — which can have its effects. According to Gallup, “those who report discrimination in their workplace are less likely to strongly agree that they have the opportunity to do what they do best, that their opinions count, or that someone at work cares about them as a person.” That lack of resolution has consequences, as 43% say they’ve left a job in the past due to unaddressed discrimination.
32% didn’t report because they weren’t sure it was a big enough deal.
We also found that not every issue is being reported, either. Those who didn't report their experienced discrimination said they didn't because they weren't sure it was a big enough deal to report. This could be because of a workplace culture where employees may believe that certain microaggressions "don't count," when any concern should be reported.
Other reasons for not reporting include fear of retaliation — Harvard Business Review notes that “retaliation is astonishingly common: 68% of sexual harassment allegations and 42% of LGBTQ+ discrimination allegations made to the EEOC also include charges of employer retaliation” — and not believing the report would be addressed (which, if only 54% of issues are being fully resolved, means they have good reason to believe that).
90% are more likely to report through anonymous channels.
What could encourage more reporting, and decrease the fear or hesitancy around it? 90% of our respondents said that they would be more inclined to report issues of discrimination if given a truly anonymous channel through which to do so. This would allow those who don't want to risk retaliation to feel more comfortable sharing their concerns. This number being so high — nearly all of those surveyed — means that there is a very real hesitancy to giving open and honest feedback, if they know that there’s the slightest chance that their feedback could be traced back to them.
85% believe their company has proper measures in place to prevent discrimination.
We found that 85% of workers believe that their workplace does have measures in place to prevent discrimination. However, as we've seen above, discrimination is still happening very frequently in workplaces, and issues aren't being fully resolved as they should be. Organizations may not be soliciting the right feedback from employees, or may be getting feedback but have no way of effectively managing that feedback or resolving it, or may have resources in place but don’t communicate enough to employees where they are and how to use them.
Now that you're aware of the depth of the issue, take action. Start listening to employees to find out their concerns and frustrations around how your organization is handling discrimination. Take inventory of the tools that are working, and put in place new tools that will not only help generate more feedback, but that will help streamline internal processes to ensure issues are being resolved. Revamp your communication as well to make sure your employees know how to report, and what they should be reporting.
Discrimination may be present, but it doesn't have to stay.
More states consider bills to prohibit discrimination against black hair
This year, more states are weighing measures to prohibit hair discrimination in work or school settings, joining 14 other states that have enacted similar laws over the past few years.
For decades, Black Americans have been villainized and discriminated against because of their natural hair, whether they’re showcasing their hair texture or wearing protective styles such as braids, twists or dreadlocks. In many cases, employers have demanded Black people cut or change their hair or fired them for not doing so.
“(Black people are asking), ‘How can we be ourselves at work?’ In 2022, it’s still a struggle, and it has a lot to do with policies,” said Patricia O’Brien-Richardson, an associate professor of teaching at the Edward J. Bloustein School of Planning and Public Policy at Rutgers University. “Thankfully we are moving towards a situation where this won’t be an issue, but people can still be fired until this becomes a formalized act.”
In March, the U.S. House approved the CROWN Act, an acronym for Creating a Respectful and Open World for Natural Hair, which would prohibit discrimination in workplace settings, public accommodations, housing and federally funded programs. The bill now heads to the Senate Judiciary Committee.
Meanwhile, at least 12 states are considering similar bills this legislative session: Alabama, Alaska, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, North Carolina, Rhode Island and Tennessee, according to the National Conference of State Legislatures and Stateline research. The measures in Massachusetts, Minnesota and Missouri have moved to the state Senate. Other bills remain in committee.
Proposals in three states — Florida, Mississippi and Utah — failed to make it out of committees.
In Louisiana last spring, one GOP lawmaker voting against CROWN Act legislation said it was unneeded. "African American people are already protected as a protected class under race discrimination hiring practices,” said state Rep. Larry Frieman, according to the Louisiana Illuminator. The bill was reintroduced this year and is in a House committee.
Angela Onwuachi-Willig, dean of Boston University School of Law, said she suspects more states will pass laws. Multiple factors, she said, have contributed to the heightened interest in legislation, including the U.S. Army’s 2017 decision to lift its ban on dreadlocks, calls for racial justice following the 2020 murder of George Floyd and the awareness of Black hair through publication of books and films.
“I think you had more people who were reading and just understanding a little bit more about discrimination and could see hair discrimination as something more than just something about a hairstyle,” Onwuachi-Willig said. “They began to understand it as race discrimination.”
Other factors also have boosted the legislation. The evolution of the natural hair movement, news coverage of Black people affected by work and school-based hair policies and advocacy efforts by Black people all have pushed lawmakers to craft bills, said O’Brien-Richardson, who has researched the intersection of racial discrimination and hair discrimination for more than a decade.
O’Brien-Richardson recalled watching the news in December 2018 when Andrew Johnson, then a 16-year-old Black high school wrestler in New Jersey, was forced to either cut his dreadlocks before his wrestling match or forfeit. She saw Black and white residents come together to support Johnson and question grooming policies. It was at that moment, she said, she knew people were fed up.
Six months later, California became the first state to pass a race-based hair discrimination law.
“It just goes to show how this (issue) touched a visceral nerve across age and across gender. This is where it started to grow to the point where society is now saying, ‘Enough is enough,’” O’Brien-Richardson said. “And at that time, the CROWN Act became a reality.”
The issue already had begun to gain momentum in Massachusetts in 2017, when two young Black twin sisters were disciplined for wearing long braids to their charter school. Because the students refused to change their hair, they were kicked off their sports teams.
Democratic state Rep. Steven Ultrino sponsored a bill last year that would have prohibited discrimination against natural hairstyles in an attempt to end racial bias against Black students at schools. The measure failed to pass because of other matters, he said, so he decided to reintroduce the bill this session. It recently passed the state House and was reported favorably out of a Senate committee.
“People ask, why would you file such a bill? Well, because my constituents were affected by it,” said Ultrino, who is white. “If it affects my constituents, I’m gonna fight for them.”
For the past three years, Florida state Sen. Randolph Bracy, a Black Democrat who is now running for Congress, has filed a related measure. The legislation has stumbled every year. Bracy said some lawmakers who also are business owners think they should be able to set their own policies, which has made it difficult for the bill to move forward.
“I tell legislators or people who may be opposed to this … ‘This is their natural hair. You have a problem with how their hair is naturally growing out of their head,’” Bracy said. “You have to see a problem in a person not being able to grow their hair the way it grows. I think they haven’t even thought about it because they’re so used to people adjusting to their norm instead of their own.”
Supporters of the bill point out that Black students still are being punished for their hair.
In March, Jacob Rush, a high school senior at Abeka Christian Academy in Florida, received a letter informing him that he couldn’t wear his dreadlocks to graduation if he wanted to walk across the stage, according to The Black Wall St. Times. Rush’s mother created a Change.org petition that garnered more than 37,000 signatures. The school issued an apology on Facebook for its “insensitive rule of no dreadlocks.”
In other cases, a Black California man sued a prospective employer, and a Black Louisiana woman sued a company that terminated her, both alleging discrimination because of their hair.
Race-based hair discrimination is not a new phenomenon for Black people.
A 2020 research article published in the Journal of Social Psychological and Personality Science by professors from Michigan State and Duke universities showed a bias against Black female job applicants. The authors found that Black women with natural hairstyles were “perceived to be less professional, less competent, and less likely to be recommended for a job interview than Black women with straightened hairstyles and White women with either curly or straight hairstyles.”
Another research study by Dove, the main company pushing CROWN Act legislation, found that 53% of Black girls as early as 5 years old have experienced hair discrimination. And Black women are one and a half times more likely to be sent home from work because of their hair, according to Dove.
The work by advocacy organizations, lawmakers and the community at large to bring awareness to the issues and pass laws will allow young people to live without penalty, O’Brien-Richardson said.
“I feel like for young girls, young women and men to be able to enter a world where they have the freedom to not be penalized as they are themselves, that’s huge,” she said.
Manager's single slur can support race discrimination claim, 5th Cir. says
- A single slur can support a workplace race discrimination claim, the 5th U.S. Circuit Court of Appeals ruled March 22 (Woods v. Cantrell, No. 21-30150 (5th Cir. March 22, 2022)).
- The employee in Woods sued his employer, alleging, among other things, that his supervisor's use of a racial slur in reference to the employee created a hostile work environment. A lower court dismissed the claim, citing the 5th Circuit's 2004 position that "a single utterance of a racial epithet, despicable as it is, cannot support a hostile work environment claim."
- On appeal, however, the 5th Circuit noted that in a 2007 opinion, it said that "[u]nder the totality of the circumstances test, a single incident of harassment, if sufficiently severe, [can] give rise to a viable Title VII claim." The lower court should reconsider its ruling in light of that position, the appeals court said, remanding the case.
Title VII of the Civil Rights Act of 1964 prohibits, among other things, race discrimination in employment. This includes race-based harassment severe or pervasive enough to alter the conditions of the victim's employment, according to the U.S. Equal Employment Opportunity Commission.
Generally, an employer can be held liable for harassment based on a protected characteristic if it knew about the harassment and failed to take action. When an employee's supervisor is the alleged harasser, however, workers face a lower bar for showing discrimination: "If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer," according to guidance from EEOC, the agency that enforces Title VII.
And when it comes to determining whether an action amounts to illegal harassment, the EEOC seems to agree with the 5th Circuit: while isolated incidents generally will not support such a claim, according to commission guidance, an extremely serious incident may, it said. And "perhaps no single act can more quickly 'alter the conditions of employment and create an abusive working environment'" than a racial epithet used by a supervisor in the presence of subordinates, the appeals court said, citing a sister circuit.
A plaintiff last year asked the U.S. Supreme Court to weigh in on the question, petitioning it to review a 5th Circuit ruling that an employer didn't violate Title VII when it allowed a written slur to remain at a worksite for months, despite complaints. The court, however, declined the request, leaving the appeals court's ruling intact.
Management-side attorneys often recommend that HR pros train managers to avoid engaging in harassment themselves and to spot it in the workplace. They should know how to elevate issues to HR, experts say — and be held accountable if they fail to do so.
HR, then, should conduct a good-faith investigation, employment attorneys have said, and, if harassment is found, take reasonable steps to end the misconduct and prevent it from recurring.
Study: Christians, Jews and Muslims encounter workplace discrimination differently
According to a recent study, a large proportion of Muslim (63%) and Jewish (52%) participants reported religious discrimination in the workplace compared with other religious groups.
Rachel Schneider, one of the study’s authors, said Muslims and Jewish people didn’t feel they could take advantage of religious accommodations in the workplace.
HOUSTON, Texas — Christians, Jews and Muslims encounter workplace discrimination, but they experience it differently, according to a new report by Rice University’s Religion and Public Life Program.
While Muslims and Jews say they’ve felt targeted by anti-Islamic and antisemitic rhetoric, it’s most often in the context of being seen as part of a larger group, they said in the study. Whereas evangelical Christians say they more often feel singled out when taking an individual stand based on their moral views, the report found.
Rachel Schneider, one of the report’s authors, said they learned that people often experienced workplace discrimination in the form of microaggressions — such as stereotyping and othering — not just in the hiring, firing and promotion process.
“It was these everyday practices and behaviors in the workplace that was really surprising to learn more about how they’ve manifested,” said Schneider, a postdoctoral research fellow in the Religion and Public Life Program.
The report, “How Religious Discrimination Is Perceived in the Workplace: Expanding the View,” draws its research from Rice University’s “Faith at Work: An Empirical Study,” which included a survey of more than 11,000 people. Additionally, researchers conducted in-depth interviews with nearly 200 of those who were surveyed, including 159 Christians, 13 Jews, 10 Muslims and 12 nonreligious people. The research was funded by the Lilly Endowment.
A large proportion of Muslim (63%) and Jewish (52%) participants reported religious discrimination compared with other religious groups.
Perceptions of religious discrimination varied within Christian subgroups, with evangelical Protestants the most likely to report experiencing religious discrimination (36%), whereas roughly 20% of Catholics and mainline Protestants each reported religious discrimination, according to the report. About a quarter of other Christian/other Protestants say the same (24%).
Among nonreligious participants, 27% perceived religious discrimination in the workplace.
Through in-depth interviews, Jewish and Muslim participants described verbal microaggressions tied to antisemitic and anti-Islamic stereotypes.
One white Jewish woman working in social services in Indiana detailed co-workers using a common antisemitic trope, saying she was “good at bookkeeping and keeping track of money.” In another example, a white Jewish man who works in information technology in Florida described hearing comments such as “Well, Jews run all the banks.”
Similarly, Muslims described Islamophobic sentiment in the workplace.
An Asian Muslim man who is an engineer in New York mentioned colleagues expressing anti-Muslim views along the lines of “Muslims are extremists,” although he didn’t consider this to be discrimination or directed at him explicitly, according to the report.
In a more extreme example, a white Muslim woman working in sales at a construction company in Louisiana said she was “harassed” when she converted to Islam. She was “ridiculed” after deciding to cover her head and dress more modestly. Signs were put up in the office, with one reading “I tried to see your point of view, but your point of view is stupid.”
Schneider said Muslims and Jewish people didn’t feel they could take advantage of religious accommodations in the workplace, such as access to prayer rooms, because they would have their co-workers “looking at them a certain way.” Researchers found Jewish and Muslim women “concealed or downplayed their religious identity in the workplace to preempt discrimination.”
Muslims and Jews also felt like they were treated as foreign or exotic. “People didn’t really know how to act around them,” Schneider said.
Christians, particularly those who are evangelical, reported that verbal microaggressions often took the form of specific name-calling.
A white evangelical woman who is a nurse in Tennessee said her co-workers at a previous job “would call me ‘Ms. Holy,’ because some employees … would want to break protocol or break the rules,” she told researchers, adding that she just wanted to follow her employer’s policies.
In another example, a Latina evangelical in Tennessee said co-workers at a previous job “would make fun of me because I didn’t talk or participate in their tasteless conversations, saying, ‘Oh, there’s the hallelujah, or the sanctimonious person.’” Also, a Black evangelical man, working as a criminal investigator in Texas, told researchers “there’s kind of this theme out there that Christians are inherently judgmental and hypocritical.”
For Christian women of color, in particular,” there was this sense that people just made assumptions that they wouldn’t want to be included in social gatherings because they perceived things like ‘they didn’t drink,’” Schneider said. They would be excluded due to “perceived moral lifestyle differences,” she added.
The report’s authors make it clear that Christian perceptions of discrimination don’t “carry the same risk for violence that religious minorities experience.”
“Yet it is important to recognize that Christians do perceive religious discrimination and othering in the workplace in ways that feel demeaning, prejudicial, or exclusionary, and this should not be dismissed by researchers,” the authors said in the report.
As for the nonreligious, respondents felt compelled to downplay or hide their identities.
A nonreligious Latino man working as a security guard in California told researchers he would speak softly when expressing his views due to fear of being reprimanded, disciplined, or fired if something was taken out of context.”
A Black agnostic engineer in Arizona said she “was hesitant to reveal her agnosticism because she was already a ‘triple minority’ in the workplace as the youngest employee and a Black woman,” according to the report.
To Schneider, it’s important employers recognize that religious discrimination in the workplace could lead to workers feeling “marginalized and stigmatized” and “may impact their ability to retain employees.”
Schneider said employers should offer training on religious discrimination.
“We all know employees are often, these days, given diversity training, but in another aspect of our study we asked how often religion came up in those kinds of trainings and it was hardly ever,” she said. “If it did, it came up only in a very superficial way.”
Five ways HR can support employees observing Ramadan
The month of fasting began on April 1
Today, April 1, Muslims around the world will begin observing the first day of Ramadan. The annual observance involves abstaining from food and drink from dawn to dusk and participating in additional religious gatherings or prayer sessions at night.
Depending on what time the sun rises in the region, families will eat the pre-dawn breakfast – a meal that will last them all the way until dinner time. This means that many will see their sleep disrupted for the month, which could affect their attention and productivity while they work. For companies focused on promoting diversity, equity and inclusion (DEI), Ramadan provides the perfect opportunity for HR leaders to practice what they preach.
HRD spoke with business professionals for tips on how to support employees while they observe the month of fasting.
Have a religious observance policy
“Organizations should have a policy for religious observance during working hours to guarantee consistency,” says Ryan Reed-Baum, founder and CEO of TruLog, a metal log siding manufacturer in Loveland, CO. “Managers should be instructed on what they can do to help workers. A lack of such policy or failure to support employees whose religious beliefs require them to follow specific behaviors might lead to religious discrimination allegations.”
Communicate with your employees
“Never assume who does and doesn’t celebrate Ramadan,” says Ceasarae Galvan, DEI assistant at the National Registry of Emergency Medical Technicians in Columbus, OH. “Encourage employees to approach HR or their supervisor with any questions or accommodation requests related to religious observances. Educate the entire organization about Ramadan and its practices, encouraging employees to respect others who may be observing the fast.”
Accommodate time-off requests
Employers may notice a strong demand for yearly leave from people who are celebrating the celebration, particularly during Ramadan's end, which is marked by the Eid festival. Because Ramadan follows the lunar calendar, it’s difficult for employees to plan, therefore yearly leave requests may be filed at short notice.
“Employers should guarantee that annual leave requests are handled fairly and by the company's annual leave policy,” says Abe Breuer, CEO at John To Go, a portable toilet provider headquartered in Spring Valley, NY. “Employers should present logical, sensible arguments for refusing to grant leave when it’s not possible. Furthermore, where annual leave requests are approved for those participating, employers must guarantee that other employees aren’t affected by the outcome.”
“Allow employees to work flexible hours to ensure that their Ramadan traditions aren’t interrupted,” Galvan says. “When possible, allow lighter work duties for physically intense jobs, as fasting will often affect an employee's energy. And be sure to avoid food-related activities, such as company picnics, working lunches or pizza parties, so you don’t end up excluding those observing the fast.”
Encourage managers to be patient and empathetic
“Managers should be courteous to Muslim employees who are fasting during Ramadan and assist them in managing their workload,” Reed-Baum says. “Fasting employees' productivity levels may be affected, especially towards the end of the working day, so managers should show tolerance and be understanding of this. They absolutely shouldn’t penalize or criticize employees whose productivity is reduced due to their fasting.”
United States: U.S. DOJ Issues Guidance On Web Accessibility Under The ADA
Under new Department of Justice ADA guidance, covered entities must provide persons with disabilities access to goods, services, programs and activities offered online
Entities "can choose" and "have flexibility" in how they provide access
The guidance does not clarify or otherwise address several key issues entities face in providing access to online offerings
On March 18, 2022, the U.S. Department of Justice (DOJ) issued a new guidance on website accessibility under Titles II and III of the Americans with Disabilities Act (ADA). The guidance addresses how state and local governments and "public accommodations" or businesses open to the public can ensure their websites are accessible to persons with disabilities, and emphasizes that web accessibility is an enforcement priority for the DOJ.
The DOJ last issued a guidance on this topic in June 2003, which addressed only state and local government websites under Title II of the ADA and the Rehabilitation Act of 1973.
Advocates for individuals with disabilities, as well as entities covered under the ADA, have long beseeched the DOJ to provide greater clarity with respect to an entity's obligation under the ADA regarding accessibility of websites and mobile applications. In February, 181 advocacy organizations representing persons with disabilities sent a joint letter to the DOJ asking it to resume its rulemaking efforts on website accessibility and prioritize finalizing a rule by the end of the current administration. The DOJ's prior efforts were withdrawn on Dec. 26, 2017, without even a proposed regulation being issued.
The new guidance reiterates the DOJ's position that the ADA's requirement to provide effective communication for persons with disabilities applies to the goods, services, programs or activities offered by state and local governments and businesses on the web. The DOJ also emphasizes, however, that covered entities "can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities." Even though covered entities have flexibility in how they comply with the ADA's general requirements of nondiscrimination and effective communication, they still must ensure that the programs, services, and goods they provide to the public online are accessible to persons with disabilities. This is consistent with the DOJ's prior statement (set forth in its Sept. 25, 2018, response to a joint letter from more than 100 members of Congress) that covered entities have flexibility and that "noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA."
The guidance does not clarify, however, what such flexibility or choice encompasses. Notably, the DOJ has previously taken the position that access can be provided via an alternate method (such as a toll-free phone number), but had sought public comment in previous rulemaking efforts regarding whether and/or in what circumstances such alternate access should be permitted.
The guidance provides examples of website accessibility barriers:
The guidance identifies resources for further technical direction, and references both the Web Content Accessibility Guidelines (WCAG), which are voluntary and issued by the World Wide Web Consortium's (W3C) Web Accessibility Initiative, and the Section 508 Standards, which set forth accessibility requirements for federal government websites. The Section 508 Standards adopt WCAG 2.0 Level AA Success Criteria. WCAG itself is an evolving set of guidelines. Since the Section 508 Standards were promulgated, WCAG 2.1 has been issued, and WCAG 2.2 and WCAG 3 are in process. Although the guidance does not expressly endorse a particular version of WCAG, the DOJ's recent settlements regarding the accessibility of COVID-19 vaccine registration websites reference WCAG 2.1 Level AA.
- Poor color contrast
- Use of color alone to convey information
- Lack of text alternatives on images
- Lack of captions on videos
- Inaccessible online forms
- Lack of keyboard navigation
While the continued acknowledgment that covered entities have flexibility in complying with their obligations under the ADA is welcome, the guidance itself does little to clarify issues that have rendered entities vulnerable to serial lawsuits. Such issues include:
- Which guidelines and standards should be used in assessing compliance? If a covered entity has confirmed its website to WCAG 2.0 AA, must it further conform its website to WCAG 2.1 AA? WCAG 2.1 does not change any of the success criteria included in WCAG 2.0, but adds additional success criteria addressing elements or features not addressed in WCAG 2.0. Many court complaints and demand letters now reference WCAG 2.1 AA instead of WCAG 2.0 AA.
- How will "compliance" be defined? The DOJ has previously acknowledged that requiring 100 percent compliance 100 percent of the time is not a practical definition of compliance in the digital realm. Even entities that have invested significant resources in the accessibility of their websites, however, continue to be targeted with claims, even if the alleged barriers reflect isolated or de minimis issues.
- What is the threshold for "undue burden" in the digital accessibility context? Many lawsuits by serial files have targeted a wide range of entities, including smaller entities with limited resources. A plan for achieving and maintaining an accessible website can involve significant expenditures. For example, the cost of ongoing, periodic assessments and validation testing will vary depending on the nature of website, the scope of the testing, the frequency of the testing, and how many different assistive technologies and browsers are used in the testing. An ongoing testing program is frequently among the relief sought in complaints, yet the guidance does not address either the threshold for undue burden or the reasonableness of an ongoing testing and maintenance program.
- What is an entity's obligation with respect to third-party content? An entity's website can include links to third-party websites, as well as content or features such as plug-ins, that an entity has no ability to modify or require that the third party make accessible. An entity can face a hard choice between potential liability under the ADA or alternatively omitting features or content its users expect.
In summary, the guidance essentially does not provide any new information regarding the DOJ's overall position and does not clarify the DOJ's views on the many issues that can factor into an entity's ability to successfully navigate accessibility compliance in the digital realm.
- Is an alternate method of access acceptable in lieu of making a website itself accessible? If so, what are the circumstances in which such an alternate method of access will be permitted and what forms can it take?
Federal judge tosses employment discrimination case, acknowledges COVID-19 may be disability
A federal judge has decided that while COVID-19 can qualify as a disability, a Colorado Springs woman terminated from her job at the outset of the pandemic failed to establish her employer violated the Americans with Disabilities Act through its reaction to a COVID-19 diagnosis.
Tammy L. Baum, a former accounts receivable clerk for Dunmire Property Management, claimed the company fired her shortly after learning her father was hospitalized with COVID-19 in March 2020. The ADA prohibits employers from discriminating against people with disabilities, but its protections also extend to workers who have established relationships with a disabled person.
That "association provision" of the law is meant to guard against stereotypes or assumptions about people who have disabled family members. Baum asserted that her father's COVID-19 diagnosis, coupled with his longstanding respiratory issues, constituted a disability that Dunmire knew about when it terminated her.
U.S. District Court Judge Christine M. Arguello dismissed Baum's lawsuit last week. Although Baum had sufficiently demonstrated an association with her father and an adverse employment action against her, there was a missing link from the failure to establish her father's COVID-19 as a disability.
"Federal courts around the country are grappling with whether COVID-19 constitutes a disability under the ADA," Arguello wrote in her March 25 order. "However, the common theme in this regulatory guidance is that COVID-19 may be a disability when it is long-term — lasting for months — not when it is acute."
Julian G.G. Wolfson, a lawyer with HKM Employment Attorneys, did not believe the ruling represented a major shift, given the specific facts of Baum's case. He noted that Arguello had incorporated the findings of the U.S. Equal Employment Opportunity Commission, which are not binding but may help guide judges' evaluations of similar cases.
"Another thing that's important here is she's clear, on the record, that COVID can constitute a disability. I think that is an important statement in itself," Wolfson said.
According to Baum's lawsuit, she sent her supervisor a text message around March 16, 2020, saying Baum's father was in the hospital for respiratory issues. The supervisor questioned the nature of the symptoms and when Baum last had contact with her father.
She then instructed Baum not to come to the office until she knew the results of her father's COVID-19 test, for fear of putting others at risk. The supervisor allegedly denied Baum's request to work remotely.
Days later, Baum wrote to Dunmire's vice president, mentioning her father and hoping she would not lose her job because of his illness. Baum received a response confirming that company policy was for employees to self-quarantine if they were in contact with someone who was ill.
On March 26, Baum texted an employee, stating her father had tested positive for COVID-19. Two days later, Baum's supervisor contacted her to say Baum's position was eliminated and Dunmire was shutting down its office. Baum's father, James Kinkaid, died on March 31.
Under the ADA, a disability is a physical or mental impairment that substantially limits a major life activity. The EEOC, which enforces workplace discrimination laws, has determined that COVID-19 can fit that description on a case-by-case basis. Asymptomatic cases or mild cases of the novel coronavirus are akin to the common cold, rather than a disability. By comparison, "long COVID" that affects bodily functions and limits major life activities is a disability, according to the EEOC. The agency also warned that employers may violate the ADA by relying on myths or fears about COVID-19 to discriminate against workers.
Baum alleged that her employer's questions about her father's illness and Dunmire's decision to terminate her days after learning of his COVID-19 diagnosis plausibly suggested disability discrimination.
"Plaintiff’s allegations strongly support the inference that had Mr. Kinkaid tested negative for COVID-19, then Dunmire would not have terminated her employment," wrote Baum's attorney, Gregory E. Givens. "In short, Dunmire made up its mind to terminate plaintiff based on speculation about potential risks, patronizing assumptions, and generalized fears about COVID-19."
Dunmire moved to dismiss the lawsuit, saying it was unable to find any court cases that had defined COVID-19 as a disability under the ADA. The company also disputed that Kinkaid's diagnosis was a factor in Baum's termination.
Arguello agreed with Dunmire, explaining that the ADA is oriented toward long-term disabilities.
"Although plaintiff’s father died, his illness lasted for only 15 days. Such an acute, short-term illness is too transitory in nature to constitute a disability under the ADA," she wrote. "If acute, short-term COVID-19 is considered a disability, then millions of Americans would suddenly qualify as disabled under the ADA."
The judge also emphasized that the ADA's association provision covers "known" disabilities. Baum had not sufficiently alleged that Dunmire knew her father had a disability when it decided to end her employment.
At least one other court recently reached a different conclusion about the ADA's applicability to COVID-19. In September, a federal judge in the Eastern District of Pennsylvania declined to dismiss a lawsuit, in which an employer fired the plaintiff the same day she reported her COVID-19 diagnosis. The judge decided it was plausible the company terminated her after believing she had developed a major life impairment. The lawsuit settled soon afterward.
Givens, the lawyer for Baum, said the generalized fear of COVID-19's effects was also the main line of argument for his client's discrimination claim. He told Colorado Politics that the parties had settled the case shortly before Arguello's order, meaning there would be no appeal of her findings.
Arguello dismissed Baum's further allegations that Dunmire's requests for her father's COVID-19 test results amounted to improper use of family medical history under the Genetic Information Nondiscrimination Act. Congress enacted the 2008 law to generally prohibit employers and health insurers from discriminating on the basis of family medical history.
COVID-19 diagnoses are "not the kind of genetic information contemplated by GINA," Arguello concluded.
Avoiding “Single Event” Hostile Work Environment Claims
Title VII of the 1964 Civil Rights Act and other anti-discrimination statutes require employers to avoid discrimination on the basis of race, gender, and other improper classifications. The United States Supreme Court has established that conduct violating these statutes can arise not only from economic or tangible discrimination, but also from a workplace that is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of an employee’s employment relationship and create an abusive working environment.” This later form of discrimination has come to be known as “hostile work environment” discrimination.
Standard for Stating a Hostile Work Environment Claim
The United States Court of Appeals for the Fifth Circuit has specified that for an employee to state such a claim adequately, he or she must allege:
- Membership in a protected group;
- Being subjected to unwelcome harassment based upon a protected characteristic which affects a term or condition of employment, and
- Harassment in a situation where the employer knew or should have known of such harassment and failed to take prompt remedial action.
How Pervasive Must the Hostile Work Environment Be?
In Woods v. Cantrell, the Fifth Circuit recently approved a rare “single event” claim of hostile work environment situation which portends potential hazards for employers.
The case focused upon the wording of an African-American employee’s complaint which raised, among other claims, a claim for hostile work environment. To support that claim, the employee alleged that in the presence of others in the workplace, his supervisor, a person of a different ethnic descent, called him a racial epithet identified in the decision as “Lazy Monkey A___ N___.”
This was the only conduct cited by the employee. This claim of hostile work environment had been dismissed by the court below on the basis that “a single utterance of a racial epithet, despicable as it is, cannot support a hostile work environment claim.”
The Court of Appeals disagreed with this conclusion.
It recognized that its prior decisions had not made clear the extent to which one single hostile act could constitute a hostile work environment violation. Even so, in reviewing decisions from other Courts of Appeals around the United States, the Fifth Circuit acknowledged that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet as the ‘N-Word’ by a supervisor in the presence of subordinates.” In evaluating the legal landscape presented in this case, the Court went on to quote from another decision that characterized the “N-Word” as “probably the most offensive word in English.”
Single Event Can Constitute Hostile Work Environment
On this basis, the Fifth Circuit concluded that the event identified by the employee in this case stated an actionable claim of hostile work environment which, if supported by adequate proof, could entitle the employee to recover damages.
In the wake of this rejuvenation of “single event” hostile work environment claims, employers are well-advised to counsel their supervisory staff about the hazards of using, or tolerating the use of, racial (or ethnic) epithets in the workplace.
As the above hostile work environment standard indicates, an employer can be held liable for such a claim if it knew or should have known of unlawful harassment and failed to take prompt remedial action to address it. Given the potential exposure to single event hostile work environment claims, employers must now recognize that such “prompt action” may well have to occur before a supervisor expresses an offensive comment, based upon what an employer knew or should have been known prior to that single event.
This recent hostile work environment decision underscores the hazard for employers in not properly training and disciplining supervisors about workplace conduct. Such training must be repeated regularly to ensure proper standards of conduct apply in the workplace. Jackson Walker’s employment lawyers can provide assistance with both creating and administering such a policy to assist employers in thwarting potentially toxic work environments.
Collecting and Storing Employee Vaccination Information Tips
Verifying and recording the COVID-19 vaccination status of employees has become a new and unique challenge for many employers. Though many employers have little choice but to request and store this data to enforce mandatory vaccination policies, any documentation concerning an individual’s vaccination status is regarded as a confidential medical record by the Americans with Disabilities Act (ADA) and many state laws.
However, despite the unique privacy challenges, employers may still request this information. Here are a few suggestions to avoid running afoul of any privacy regulations while tracking your employees’ vaccination status.
Avoid Any Unnecessary Information
Employers are generally legally permitted to request information on their employees’ vaccination status and even request documentation that serves as proof of vaccination.
It is essential to consider what information your business actually requires. In some circumstances, an honor code may suffice. If some documentation from a medical provider is necessary to prove vaccination status, attempt to keep such information to a minimum and ensure the employee is aware not to submit any unnecessary medical information. This could constitute a violation of the ADA, plus in the event of a data breach, this could create even greater liability.
Be Clear What Is Suitable Proof of Vaccination
What constitutes acceptable proof of vaccination varies based on jurisdiction and situation. In many cases, it may be completely up to the employer what they choose to accept. However, for some industries and jurisdictions, certain supporting documentation could be required. This could include a vaccination card or other proof provided by the medical provider who administrated the shot in many cases. However, keeping information requirements to the minimum possible is safer whenever possible, and in some cases, a survey response could be acceptable.
Employers should also ensure that they have a formal policy in place regarding the information they will collect and the consequences for failing to comply. These policies should be made to comply with all current state and federal requirements.
Ensure Proper Collection and Storage
In some cases, state law may require employers to supply employees with a collection notice when requesting information regarding vaccination status. This information must be stored appropriately and separate from employee personnel files.
Employers must ensure that a policy is in place regarding how this information is stored and when and how it will be disclosed. Employees should be made aware of these policies, and consent must always be acquired before vaccination information is provided to a third party.
Rules on collecting and storing employee vaccination information are complex and ever-changing as both state and federal rules are rewritten and interact. As a result, it is important to remain informed and contact legal counsel whenever you are in doubt about your vaccination policies.
How older workers can push back against the reality of ageism
Ageism is one of the most unfair paradoxes in the labor market: People put in decades of hard work and then find themselves penalized for having done so.
- Anyone feeling that they’re paying a price for their age at work should know they’re not alone, experts say.
- Nearly 80% of older employees say they’ve seen or experienced age discrimination in the workplace, according to the most recent survey by AARP. That was the highest share since the group began asking the question in 2003.
- Here are some strategies to combat the problem.
And the problem is only worsening: Nearly 80% of older workers say they’ve seen or experienced age discrimination in the workplace, according to the most recent survey by AARP. That was the highest share since the group began asking the question in 2003.
Even as the economy bounces back from the fallout of the coronavirus pandemic, older workers are having a challenging time getting re-hired. The percentage of jobseekers in February above the age of 55 who were “long-term unemployed,” meaning they’d been looking for a job for 27 weeks or more, was more than 36%, compared to around 23% among those between the ages of 16 and 54. (Around a quarter of the workforce is older than 55.)
“I get these heart-rending emails from people who are incredibly well-qualified, who send out hundreds and hundreds of emails and don’t even get an answer,” said Ashton Applewhite, author of This Chair Rocks: A Manifesto Against Ageism. “They are so demoralized.”
Unsurprisingly, the discrimination has psychological consequences. Around 6.3 million cases of depression globally are thought to be attributed to ageism, according to the The World Health Organization.
Anyone feeling that they’re paying a price for their age should know they’re not alone, experts say. Here are some strategies to combat the problem.
Start by realizing what’s internalized
You may have your own frustration and sadness about getting older; that’s understandable, Applewhite said: “We live in a culture that barrages us with negative messages about aging.” And, as a result, she said, “older people are often the most ageist of all.”
Yet these perceptions can have a powerful impact.
Research shows that older people exposed to subliminal negative age-stereotypes are more likely to perform poorly on cognitive and physical tasks, said Dr. Vânia de la Fuente-Núñez, manager of the global campaign to combat ageism at The World Health Organization.
Because age discrimination is so common, experts say older workers should be prepared to address incidents of it, unfortunately.
If you’re before a hiring manager and suspect that they’re concerned about your age, Applewhite recommends responding to it head on. “Say, ‘I know how to work this software,’ or, ‘I’m used to working with a younger team, and I don’t care if my boss is 12.’”
Many older workers are asked by hiring managers if they’re “overqualified” for a role, Tarnoff said.
Prompting that question can be a concern that you’ll take a better job as soon as you’re presented with one. To allay that fear in an interview, Tarnoff also suggests being direct, by saying something like, “This is not a stepping stone for me. At this point in my life, this is what I want to do.”
Of course, the discrimination occurs well beyond the hiring process. If you’re experiencing the problem at work, you shouldn’t ignore it, experts say.
But the way you confront the issue is key.
Chasteen, the professor who studies prejudice at the University of Toronto, has found in recent research that older people who respond to run-ins with ageism in a way that’s not accusatory are more likely to get a positive reaction than, say, those who get heated.
As an example, she described a situation in which an older person is offered help doing a task that they’re more than able to do on their own. Such acts can be considered benevolent ageism.
“We found that the moderate approach of saying, ‘Thank you, but I can manage on my own,’ resulted in fewer negative reactions to the older individual,” Chasteen said.
“Such a response acknowledges that there was likely no ill intent on the part of the person who offered the unwanted help,” she added. “But it also provides an opportunity for the older person to assert their competence in the situation.”
It’s important that people keep a record of repeated incidents of age discrimination they experience and then report them, said Jeff Vardaro, a civil rights attorney in Columbus, Ohio.
“It doesn’t fix itself,” Vardaro said. “Workers have to take these things into their own hands.” You also probably don’t want to sit on your complaints for too long, he added, since some states require age discrimination issues to be reported within a certain amount of time.
Your notes about your experience should be as detailed as possible, Vardaro said. For example, instead of writing that your boss said something mean about your age, you’ll want to specify that on 24 different occasions he asked you when you planned to retire. “That stuff can be really useful when you go report it,” he said.
Your company’s human resources department should be your first stop, but don’t be surprised if that conversation leads nowhere, he said. Unfortunately, the people in HR department can be part of the ageist culture.
“Sometimes human resources is in on it because they have some incentive to push older workers out and bring in younger, cheaper workers,” Vardaro said. And, at the end of the day, he added, “their job is to protect the company, not the employees.”
If you feel your complaints aren’t being taken seriously internally, that’s when you’ll want to file a complaint with the U.S. Equal Employment Opportunity Commission.
In many states, submitting a federal complaint automatically triggers a state complaint as well, Vardaro said. “But it really varies state by state,” he added. “People should consult with an attorney before filing a charge.”
It’s illegal for your boss to penalize you for contacting the EEOC, Vardaro said, “but the reality is that retaliation still happens.”
“I always advise that once an employee makes an internal complaint or files a charge, they stay on the lookout for any changes in the way they are treated,” he added. “We often find it easier to hold employers accountable for retaliation than for the original discrimination.”
Applewhite said one of the most powerful ways for older people to push back against ageism is to resist hiding who they are.
“If you feel like you’re experiencing discrimination, I am really, really sorry,” she said. “If you have to dye your hair, or fudge your resume, no judgment. Do whatever you need to do.”
But, she said, “as long as we pretend we’re younger than we are, we contribute to the discrimination that makes those behaviors necessary.”
Consider reporting it
‘Women of Color in the Workplace’ fights stereotypes and discrimination
Navigating the workforce as a woman can present its challenges. However, being a woman of color in the workforce can be even more intimidating.
The Women’s Resource Center and the Undocumented Resource Center held a virtual presentation on March 9, discussing the importance of having women of color in the workforce.
The event was presented as a safe space for all participants to share and discuss their experiences, plus tips and tricks, along with other tools when it comes to navigating the workplace as a woman of color.
Magaly Corro Flores, program coordinator at the Undocumented Resource Center, and Celine Jusuf, a coordinator at the Women’s Resource Center, reminded everyone all stories and experiences shared were encouraged and appreciated.
“We want you to take care of yourself first,” Flores said.
The conversation began with the introduction of gender stereotypes and how they can negatively affect women of color.
Gender stereotypes are generalizations about the attributes of men and women.
“As women of color, we not only have to battle stereotypes associated with our culture or country of origin or income status … but we also need to battle gender stereotypes,” Flores said during the conversation.
One question asked to be reflected on was, “what are some stereotypes associated with women of color in the workplace and how do stereotypes affect the way women of color behave in the workplace?”
Some stereotypes mentioned involve the stigma of women being too emotional, or that women of color are seen as not competent enough because they have an accent or because of where they come from.
Having negative assumptions about women of color in the workplace can diminish the ability for women of color to perform to their full potential because of the many looming threats.
Unfortunately, many generalizations have been consistent across cultures, time and context. The presentation emphasized ways to respond to negative stigmas of women in the workforce.
“Making assumptions and that is an underlying basis of stereotypes and microaggressions too,” Jusuf added. “It does not need to be recognized to have harmful effects.”
Microaggressions are subtle and often unintentional representations of forms of prejudice and more than just insensitive comments or insults. Many participants shared this can reflect anxiety, show biases and demonstrate a power structure between men and women.
Throughout the presentation, there were some tips, tricks and tools given in order to respond to microaggressions: checking in with a social support network, recognizing what you can and cannot control, along with being gentle to yourself.
Sociology third year Marissa Lopez shared she is more aware of the imbalance of power in the workforce and it should not go unnoticed.
“If it comes to a topic that you feel that there is injustice and no one is speaking up about it, don’t be afraid to speak up,” Lopez said. “You’re probably the one who is speaking up.”
The last important topic discussed was imposter syndrome in the workforce and how to overcome this obstacle.
There are many ways for women of color in the workplace to respond to imposter syndrome. One method emphasized involves reframing the task. This means taking ownership of your accomplishments and seeking out tasks that you are good at as a means to remind yourself that you are multidimensional.
“We need to stand together and demand jobs who are held traditionally by women need to be respected, valued, and compensated accordingly,” Flores added to the topic.
Workplace Discrimination Erodes Confidence in Women's Abilities
Women and men perceive women as less capable, due to discrimination
International Women's Day is a time to celebrate women's economic, political and social achievements. But despite the gains they've experienced over the past several decades, women continue to be plagued by discrimination at work.
While both men and women encounter workplace discrimination, the psychological consequences of perceived gender discrimination at work manifest differently in each sex, according to research by the University of Southern California (USC) Marshall School of Business.
The report, published in the Academy of Management Journal, indicated that perceived gender discrimination reduces both men's and women's sense of belonging in the workplace. However, the study showed that gender discrimination decreases self-efficacy among women but not among men.
Leigh Tost, the study's lead author, defines self-efficacy as a person's confidence in one's ability to carry out work tasks.
"We found that the stories that women talk about gender discrimination focus, at least in part, on patriarchal assumptions about women's lack of competence and suitability for the workplace and for leadership [roles]," Tost said.
For example, a woman who participated in the survey said a manager once stated that only men can handle certain professional tasks. Another female participant said she's received comments from male colleagues about how women should be at home cooking, cleaning or raising children instead of being employed.
Many men said their organizations are likely to discriminate against them to reduce inequality against women, according to the report. For example, some men believe that they weren't considered for a promotion because top management wanted to elevate a woman due to historical injustices against women.
"Early on, the biggest surprise was how often men reporting feeling that they've been discriminated against or that they're likely to be discriminated against at work," Tost said.
Discrimination Common Among Women
About 4 in 10 U.S. women have experienced discrimination at work because of their gender, according to a 2017 report by the Pew Research Center.
The study found that women were more likely than men to believe they've been treated as if they're incompetent, receive less support from senior leadership, be passed over on important assignments and experience repeated slights at work.
Additional examples of gender discrimination at work include women being:
Anna Baird, chief revenue officer for the sales platform Outreach in Seattle, is familiar with gender discrimination at work.
- Paid less than men despite having similar job responsibilities.
- Evaluated or held to a different standard due to gender.
- Excluded from important meetings.
- Fired or demoted due to a pregnancy.
- Subjected to unwanted sexual advances.
In past job experiences, Baird was instructed by employers not to wear pants, only skirts. She was even in a situation where she begged to be let out of a moving vehicle due to unwanted advances from a colleague.
"Every woman in business, myself included, has at least a few personal stories of discrimination," Baird said. "I don't think men have had to deal with these issues with the frequency women do to survive in their career. I understand the frustration [of women], and we all deserve to be treated equally."
Listening Without Judgment
The USC Marshall researchers noted that the effects of discrimination contribute to lower well-being among both genders, with the negative effects being more pronounced among women than men.
Tost said the low self-efficacy, as reported by many women in the survey, is associated with low motivation, disengagement from work tasks and several other negative outcomes that can harm work performance. These outcomes can affect women's careers and organizational outcomes.
"Anyone who is not confident in their own abilities will never likely achieve their ultimate potential, feel proud of their contributions or grow their skills to the extent they could," said Deb Boelkes, award-winning author of Women on Top: What's Keeping You from Executive Leadership (Business World Rising, 2021).
Boelkes explained that gender discrimination erodes fellowship, collegiality, collaboration and teamwork. If left unresolved, it can create a toxic work environment that could undermine the success of the organization.
HR professionals should listen to employees who feel discriminated against, Boelkes said. They should allow these workers to express their feelings in confidence and without judgment. This could increase trust within the organization.
"Do not tell them they shouldn't feel the way they do, as doing so will likely make the situation worse. Simply acknowledge their feelings," Boelkes said. "Then help them come up with a plan to maximize their potential."
Baird's company, Outreach, emphasizes developing and promoting a diverse set of talent and fostering an environment where people of all backgrounds can thrive. The company created nine employee resource groups that are actively involved in creating awareness, mitigating biases and creating an inclusive environment.
As a result, women represent 39 percent of the global workforce and 45 percent of the leadership team at Outreach, Baird said.
Strengthening diversity, equity and inclusion programs can improve a company's culture and create a welcoming environment for people of all backgrounds, improving recruitment and retention efforts.
Education, promotion and equal pay can help alleviate perceived workplace discrimination and avoid the risks associated with pay equity.
Federal Agencies Align to End Retaliation Against Minority Workers
The federal government is stepping up efforts to end workplace retaliation.
In November 2021, the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) launched a joint initiative to raise awareness about retaliation issues when workers exercise their protected labor rights.
The initiative aims to educate workers on and protect them from unlawful retaliatory conduct, as well as engage with employers, business organizations, labor organizations and civil rights groups on these issues in the coming year.
For people of color, the initiative could be particularly impactful.
"While applicants and employees in all industries experience retaliation, research shows that workers of color are more likely than others to be fired when they report the violations," said EEOC Chair Charlotte A. Burrows. "The fear of economic harm leaves some workers feeling less willing to risk retaliation by challenging workplace violations."
Stories of Retaliation Against People of Color
Retaliation occurs when an employer punishes a worker for engaging in legally protected activity. It can include any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment.
In February, the EEOC, DOL and NLRB hosted an online dialogue titled "Ending Retaliation: Securing Racial and Economic Justice in the Workplace" to discuss the impact of employer retaliation on low-wage workers who may also experience racial discrimination in the workplace.
Seema Nanda, the U.S. solicitor of labor, called workers "our nation's eyes and ears" for identifying workplace discrimination, inequities, violations and hazards. However, many employees who experience retaliation fear reporting the act.
"Our agencies recognize we are only effective when workers feel safe coming forward," Nanda said. "And we are really committed to ensuring that you feel safe speaking up, and we are here to investigate and intervene if there is retaliation or the threat of retaliation when you do come forward."
Agency representatives said some employers have become increasingly brazen in their threats against workers who seek to exercise their rights. Companies have threatened to call immigration authorities, fire workers or blacklist employees from future employers. Some organizations have even intimidated employees' family members through texts, letters and face-to-face communication.
Jessica Looman, acting administrator of the DOL's Wage and Hour Division, said it recently helped a man who was harassed and bullied by his company after he requested the overtime pay owed to him.
He had been discriminated against for his national origin, Looman said. He had also been a target of wage theft and unlawful retaliation for raising his rights under the Fair Labor Standards Act.
"While never acceptable, retaliation is particularly insidious for workers from marginalized communities," Looman said.
Another case involved hundreds of Black Somali Muslims working at a meat processing plant in Greeley, Colo. These workers were consistently harassed due to their race, national origin and religion. Colleagues and managers called them vulgar names and even hurled meat and other products at them.
However, most of those employees couldn't speak fluent English, were illiterate or didn't know about their rights.
"Despite how terrible these folks were being treated, when we started our case, people were very reluctant to participate," said Mary O'Neill, the regional attorney for the Phoenix District Office of the EEOC.
Many immigrants suffer in silence. These foreign-born workers often fear speaking up because they may lack work authorization or may hold a temporary authorization that's tied to a particular employer, increasing their vulnerability.
"[Workers] are protected under the EEOC's laws regardless of their work authorization status, regardless of their immigration status, regardless of their citizenship," O'Neill said.
Retaliation affects all employees. The EEOC recently handled a case in which employees who displayed Black Lives Matter face masks were racially harassed by managers and co-workers. In a separate case, a former Home Depot employee said the company told him to either stop wearing a Black Lives Matter logo on his apron or quit.
"As our nation recovers from a pandemic that disproportionately affected vulnerable workers and workers of color, our agencies joining together now can really make a difference if people do come forward," Burrows said. "And we're committed to doing that."
Preventing Retaliation Claims
Businesses can face legal liability for claims of retaliation. But engaging in protected equal employment opportunity activity does not shield an employee from discipline or discharge, according to the EEOC.
Employers can discipline or terminate workers if motivated by nonretaliatory and nondiscriminatory reasons that would otherwise result in such consequences. However, participating in a complaint process is protected from retaliation under all circumstances.
Companies cannot respond to equal employment opportunity activity in a manner that would discourage someone from resisting or complaining about future discrimination. In 2018, SHRM outlined ways for businesses to prevent retaliation claims and explained the importance of training HR professionals to recognize situations in which retaliation is likely.
Yes, You Can Still Be Fired for Being Fat
Weight-based discrimination costs some Americans their jobs. Bills in New York and Massachusetts could expand protections to tens of millions of people.
People who are fat face bias in every corner of life. They’re more likely to be bullied in school, stigmatized by doctors, and convicted of crimes by juries. Survey respondents rate people who look overweight as lazier, weaker-willed, and less likely to win on Jeopardy!
When the humiliations extend to the workplace, the costs can be all the more easily measured in dollars and cents. People who are overweight are hired less, promoted less, and paid less. One study suggests that for every 6 pounds an average American woman gains, her hourly pay drops 2%. And people signing paychecks subject heavier workers to a gantlet of additional punishment, coercion, and harassment. “It is endemic,” says Claudia Center, the legal director for the Disability Rights Education & Defense Fund, an advocacy group in Berkeley, Calif. One of her past clients, a cable installer, got risky weight-loss surgery after his company banned him from returning to work unless he lost about 100 pounds. His bosses thought he was too heavy to use their ladder, and they wanted to keep the ladder.
Unlike other forms of discrimination, companies can get away with such treatment because, in most places in the U.S., there’s no clear law against it. Only the state of Michigan and a handful of cities, such as San Francisco; Madison, Wis.; and Urbana, Ill., ban discrimination based on weight. (In contrast, more than half of U.S. states have laws protecting people who smoke cigarettes on their own time.) In 2013 a New Jersey Superior Court judge ruled that because the state hadn’t clearly outlawed weight discrimination, an Atlantic City casino was within its rights to regulate the weight of its “Borgata Babe” cocktail waitresses. “Plaintiffs cannot shed the label ‘babe’; they embraced it when they went to work for the Borgata,” wrote Judge Nelson Johnson, who’s also the author of Boardwalk Empire.
Now, activists in New York and Massachusetts appear to have the best chance in decades to extend weight-based antidiscrimination protections to tens of millions of Americans. A pair of bills working their way through the states’ legislatures would ban discrimination based on weight or height in housing, public accommodations such as hospitals, and employment. “My body is not a failure, nor does it need to be fixed,” Janet Conroy-Quirk, who’s advocating for the Massachusetts bill, wrote in testimony supporting its passage last year. “The systemic flaws and fatphobic mentality that allow weight discrimination are the problem.”
Although the federal Americans With Disabilities Act prohibits discrimination based on real or perceived physical impairments that substantially limit major life activities, judges have been hesitant to rule that weight should be considered one of them. In rulings around the country, federal judges have written that deeming all obesity to be a disability could create a slippery slope to protecting “grossly short” people; that a firing because of a boss’s belief that “fat people are essentially undisciplined and weak” would be OK because the boss wasn’t suggesting the worker was physically impaired; and that a plaintiff’s heaviness was akin to such unprotected traits as a “neon green mohawk.”
Specific protections can spur better treatment. Michigan’s law made possible a lawsuit, resolved on undisclosed terms, by a store manager for the luxury retailer Coach who alleged that the company had promoted her when she was petite, then fired her when she wasn’t, after it first pressured her to take weight-loss hormones, get bariatric surgery, and eat more Lean Cuisines. (Coach declined to comment.) In San Francisco a settlement with an aerobics instructor forced Jazzercise Inc. to stop requiring its dance fitness teachers to “look leaner than the public.” (“Recent studies document that it may be possible for people of varying weights to be fit,” the company acknowledged.) A 2016 study found that protections in Madison and Urbana significantly increased the employment of people with obesity.
“Laws are often a reflection of cultural norms,” says Jane Korn, the former dean of Gonzaga University School of Law. In the 1990s, the first time Korn submitted a paper about weight bias to journals around the country, she got a bunch of calls from law students reviewing her draft who wanted to know if she herself was overweight. In the following decade, U.S. Surgeon General Richard Carmona called obesity a “terror within” that could “dwarf 9/11.” He described it as a crisis to be solved with personal discipline rather than public policy.
“It’s not about your body being wrong. It’s about the brand that doesn’t make the clothes that fit”
The truth is, Americans don’t have as much control over their weight as they like to think. Research suggests that our bodies are more a product of our genes and environment than of our willpower and that major reductions in weight tend to be temporary. Studies have found that many people considered overweight are metabolically healthy and that lifestyle habits such as exercise and vegetable consumption together reveal more about a person’s mortality than body mass index (BMI).
The U.S. has begun to catch up with the science, if slowly. A “Health at Every Size” movement, which promotes nutrition and exercise rather than weight loss per se, has been gaining ground among both doctors and patients. “The conversation wasn’t happening 10 years ago,” says Katie Sturino, whose advocacy for body acceptance has earned her an audience of 680,000 followers on Instagram and a small empire as a writer and consultant. Sturino’s posts include photos of her remaking celebrity outfits in her size. She’s working with Amazon.com Inc. to develop a line that includes size 4X and 5X clothing that will go on sale later this month. “It’s not about your body being wrong,” she says. “It’s about the brand that doesn’t make clothes that fit.”
Companies and media outlets that once operated to some degree on fat-shaming are now swinging a bit the other way. Vogue magazine, which over the decades has promoted a Cottage Cheese Diet, a Chinese Diet, a Champagne Diet, and a Grape Diet, in 2020 instead profiled intuitive eating: the antidiet diet of eating what you’re hungry for, when you’re hungry for it. Good Housekeeping magazine, whose turn-of-the-century cover paired a Meg Ryan profile with a Soup Diet to “Lose 10 lbs. Fast!,” recently published its own Anti-Diet Culture Series, with articles about fatphobia, body acceptance, and the limited usefulness of BMI. Plus-size women now grace the Sports Illustrated swimsuit issue and appear in ads for Dove soap and Victoria’s Secret underwear. Abercrombie & Fitch, long known for its abs-festooned catalog, now sells Curve Love jeans.
Yet for every fat-accepting corner of internet culture, there’s another pushing unrealistic beauty standards, and the view of fat as a personal failing remains widespread. “People may not even know they’re biased against people with obesity, people of size, but are making decisions based on it,” says Patricia Nece, a recently retired attorney for the U.S. Department of Labor who chairs the 75,000-member nonprofit Obesity Action Coalition. “Employers reflect society. They’re not immune to it.”
Expanding civil rights protections is hard. It tends to take decades of movement-building and attitude-transforming, often combined with tough compromises and good luck. The Civil Rights Act of 1964, for example, followed a generational protest movement. It ended up including a ban on gender bias only thanks to an amendment from a segregationist congressman who hoped it would tank the entire bill. That sex discrimination clause then got read a half-century later by the U.S. Supreme Court to ban bias against LGBTQ people, types of discrimination that Congress had failed for years to outlaw specifically despite strong public support for such a move. In 1990 the Americans With Disabilities Act emerged from fierce fights in Congress with clauses that excluded pyromaniacs and “transvestites” from protection. It also required that the government review which diseases could be spread by handling food, a clause inserted to address baseless fears about letting people with HIV work in restaurants.
When judges or lawmakers weigh who’s covered by existing civil rights laws or who they should be expanded to protect, a frequent concern is the question of what’s called immutability, meaning whether the trait that’s the subject of the discrimination is one a person can’t change. That poses a challenge with weight, which many Americans see largely as a matter of individual choices and discipline. In that respect, weight is comparable to credit history or criminal records, both of which the government has been hesitant to ban employers from judging workers on, says University of Tennessee law professor Brad Areheart.
Wisconsin Supreme Court Eases the Burden for Employers Defending Arrest and Conviction Record Discrimination Claims Under State Law
The Wisconsin Fair Employment Act (WFEA) prohibits employers from discriminating against applicants and employees on the basis of their arrest and conviction records.1 Generally, an employer cannot make decisions on the basis of an arrest or conviction record unless the crimes “substantially relate” to the circumstances of the job at issue.2 For many years, the state agencies responsible for enforcing this law—the Wisconsin Department of Workforce Development (DWD) and the Labor and Industry Review Commission (LIRC)—have taken the view that crimes of domestic violence do not substantially relate to any type of job. Their reasoning was that crimes committed in a so-called “domestic setting” or that involve a victim with whom the criminal had a personal relationship do not suggest that the criminal would engage in violence in the workplace. In the recent case Cree, Inc. v. Palmer, the Wisconsin Supreme Court provided much-needed relief to Wisconsin employers by clarifying the law, easing employers’ burden for proving a substantial relationship, and rejecting LIRC’s view that domestic violence crimes cannot be substantially related to employment.3
In 2013, a job applicant was convicted of committing eight crimes of domestic violence against his girlfriend. He pled no contest to two counts of felony strangulation and suffocation, four counts of misdemeanor battery, one count of fourth degree sexual assault, and one count of criminal damage to property. Two years later, after serving out his prison sentence, the applicant applied to Cree for a lighting applications specialist position. In that role, the applicant would have worked at Cree’s sprawling 600,000 square foot facility along with approximately 1,100 other employees. The applicant would have needed to work with Cree’s customers, sometimes on location at customers’ facilities. He also would have occasionally traveled for tradeshows, potentially overnight. During these customer visits and tradeshows, the applicant would have worked independently without much supervision. Cree made the applicant a conditional offer of employment, but after obtaining a background check and learning of his extensive criminal record, Cree withdrew the offer. The applicant then filed a complaint with the DWD alleging conviction record discrimination. Years of litigation and appeals ensued, with both parties prevailing at different points along the way.
LIRC, following its pattern in prior domestic violence cases, classified the applicant’s crimes as having occurred in a “domestic setting” and determined they were not substantially related to the position at Cree. Cree petitioned the Wisconsin Supreme Court for review. The court had not reviewed a case involving the substantial relationship test since 1987, and so was primed to correct LIRC’s interpretations of law that had developed in the interim, particularly those related to domestic violence.
Wisconsin Supreme Court Weighs In
In a notable decision, the Wisconsin Supreme Court reversed LIRC and held that Cree sufficiently established that the circumstances of the applicant’s convictions were substantially related to the circumstances of the job at Cree. The court began its analysis by providing a simplified reformatting of the substantial relationship test: the test requires an employer show that the facts, events, and conditions surrounding the crime materially relate to the facts, events, and conditions surrounding the job. Turning to LIRC’s “domestic setting” analysis, the court commented that LIRC had essentially created an exception to the substantial relationship test for all domestic violence crimes based on the common, but unsupported, assumption that domestic batterers have a tendency to be violent only towards intimate partners. The court reinforced that these details of the crime—such as the domestic context of the offense or an intimate relationship with the victim—are immaterial to the test. Instead, the relevant inquiry is into the circumstances material to fostering criminal activity. As the court explained, the material circumstances are those that exist in the workplace that present opportunities for recidivism given the character traits revealed by the circumstances of a domestic violence conviction case.
Examining the traits exhibited by domestic violence perpetrators like the applicant, the court found that they engage in violence under circumstances where their victims are isolated away from those who might intervene. They are also willing to use violence to exert power and control over others. Specific to the applicant, the court considered the serious nature of his crimes, the fact that he was convicted only two years prior to his application for employment, and his pattern of criminal behavior pre-dating his 2013 convictions. The court considered the seriousness of the convicted offense because “the more serious the offense, the less we can expect an employer to carry the risk of recidivism.”4 The court also specifically recognized an employer’s legal obligations to protect customers and other employees. As to the recency of the applicant’s convictions, the court noted: “If significant time has passed since a potential employee’s last conviction, then that tends to indicate rehabilitation and reduces the likelihood of recidivism. But the existence of convictions with similar elements that predate the most recent conviction undermine an inference of rehabilitation, increasing the recidivism risk.”5
In the job at Cree, the applicant would have been challenged by supervisors, coworkers, and customers, and these interactions could lead the applicant to react, consistent with his past behavior, in a violent manner in order to exert his own power or control. The absence of regular supervision would have created further opportunities for the applicant to engage in violence. With these considerations in mind, the court held that the applicant’s conviction record was substantially related to the job at Cree.
What this Means for Employers
With the Cree decision, Wisconsin employers will be able to make more confident decisions when assessing whether an employee’s or applicant’s crimes are substantially related to a job. Employers will also be able to base employment decisions on domestic violence crimes, which before Cree, would have entailed significant risk. While the enforcement agencies could still decide that domestic violence crimes do not substantially relate to other types of jobs, the agencies’ determinations can no longer be based on LIRC’s past unsupported “domestic setting” assumptions, but instead must be based on the Wisconsin Supreme Court’s reformatted, common sense approach to the test. While Wisconsin employers must still engage in an individualized assessment of an applicant’s or employee’s pending charges or convictions, they no longer need to consider treating those from a domestic setting any differently than other types of charges or convictions.
FACT SHEET: Biden Harris Administration Announces Commitments to Advance Pay Equity and Support Women’s Economic Security
This Equal Pay Day, the White House is announcing critical steps that the Biden-Harris Administration is taking to advance pay equity and promote women’s economic security.
President Biden and Vice President Harris have long championed equal pay as a cornerstone of their commitment to ensuring all people have a fair and equal opportunity to get ahead. Closing gender and racial wage gaps is essential to building an equitable economy and addressing the barriers that have long hampered women from fully participating in the labor force. There is growing recognition that reliance on past salary and a lack of pay transparency can contribute to arbitrary and potentially discriminatory pay that then follows women and workers of color from job to job, entrenching gender and racial pay gaps over time. But we still have work to do. In 2020, the average woman working full-time, year-round earned 83 cents for every dollar paid to their average male counterpart. Compared with the average man working full-time, year-round, disparities are even greater for Black women, Native American women, and Latinas, as well as certain subpopulations of Asian women.
This Equal Pay Day, the Vice President is hosting a virtual summit, bringing together partners across the country who are taking critical steps to tackle pay discrimination, create good-paying jobs, and support families’ access to care.
Today, the Biden-Harris Administration is announcing new actions to promote women’s employment and support working families across the country. These actions will:
• Advance pay equity for the Federal workforce. The Office of Personnel Management announced that they anticipate issuing a proposed regulation that will address the use of prior salary history in the hiring and pay-setting process for Federal employees, consistent with the President’s Executive Order on Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce.
• Promote efforts to achieve pay equity for job applicants and employees of Federal contractors. President Biden signed an Executive Order directing the Federal Acquisition Regulatory Council to consider enhancing pay equity and transparency, including by limiting or prohibiting federal contractors from seeking and considering information about job applicants’ and employees’ existing or past compensation when making employment decisions, and appropriate accountability measures. The Department of Labor will consult with the FAR Council on the efficiency, economy, and effectiveness in Federal contracting that would be promoted by potential regulatory changes, and the most effective implementation strategy for any subsequent rulemaking.
• Strengthen pay equity audits by Federal contractors. The Department of Labor’s Office of Federal Contract Compliance Programs issued a new directive clarifying federal contractors’ annual obligation to analyze their compensation practices. Conducting these pay equity audits helps address and prevent pay disparities based on gender, race, or ethnicity.
• Ensure equitable access to good-paying jobs. The Department of Labor issued a report analyzing the impact that women’s concentration in low-wage sectors – and their relative underrepresentation in many good-paying occupations – has on their overall economic security and gender and racial wage gaps. The report finds that, in 2019, Black women lost $39.3 billion and Hispanic women lost $46.7 billion in wages compared to white men due to differences in industry and occupation. This segregation intensified the COVID-19 pandemic’s disproportionate impact on women, in part due to the overrepresentation of women in hard-hit industries such as hospitality.
• Address discrimination against caregivers. Yesterday, the Equal Employment Opportunity Commission published technical assistance on caregiver discrimination, addressing the circumstances under which discrimination against applicants and employees based on pandemic-related caregiving responsibilities may violate federal employment discrimination laws.
The actions announced today build on steps the Administration has taken to advance pay equity, including:
• Provided immediate relief through the American Rescue Plan (ARP) to millions of women who have borne the brunt of the pandemic. This work includes: standing up a historic vaccination program that has fully vaccinated more than 215 million Americans; reopening schools; providing direct payments to individuals; expanding nutrition programs for families; providing paid leave tax credits for small and midsize employers; distributing the majority of emergency rental assistance to female-headed households; and expanding the Child Tax Credit, which last year helped reduce child poverty to its estimated lowest level in recorded American history.
• Helped keep child care providers open and boosted pay for child care workers. States have already delivered American Rescue Plan stabilization grants to more than 150,000 child care providers serving more than 5 million children and their families. One survey finds that 92% of providers receiving funds relied on them to help stay open and nearly half used them to repay debt incurred during the pandemic. Many states also used funds to help boost compensation of the child care workforce. For example, Minnesota is requiring providers to increase compensation, while North Carolina and Connecticut offered bonus payments to providers who increased compensation of the workforce. Increasing compensation for child care workers helps narrow gender and racial pay gaps, as more than nine in ten are women and more than four in ten are women of color. While ARP funds allowed child care programs to provide temporary bonuses, they need long-term funding as the President has proposed to sustainably increase wages.
• Provided tax relief to help families with child care costs during the pandemic by delivering a historic increase in the Child and Dependent Care Tax Credit (CDCTC) to support millions of working families this tax season. The ARP increased the maximum CDCTC for a median income family with two children under age 13 by more than six times—providing up to $8,000 towards child care expenses in 2021. It will reimburse most families for up to half of their child care expenses. And the ARP CDCTC is fully-refundable, helping lower-income parents fully benefit regardless of their tax liability. Even before the pandemic, families struggled to afford child care, forcing parents and especially mothers to forego higher paying jobs, work fewer hours, or take time out of the workforce, leading to lower pay over their career. The President has urged Congress to pass his plan for child care, which could lower child care costs for nine in ten families with young children.
• Increased the minimum wage to $15 per hour for Federal workers and contractors, benefiting many women and people of color. The President issued Executive Orders directing the Administration to work toward ensuring that employees working on federal contracts and federal employees earned a $15 per hour minimum wage. Those directives went into effect in January, raising the wages of about 370,000 federal employees and employees of federal contractors. In addition to helping the government do its work more efficiently, these directives take a step towards narrowing racial and gender disparities in income, as many low-wage workers are women and people of color. The order also eliminates the subminimum wage for workers with disabilities. The President has called on Congress to raise the federal minimum wage to $15 an hour, so that American workers can have a job that delivers dignity, and to make greater strides towards pay equity.
• Signed into law the Bipartisan Infrastructure Law. Administration investments through this law will increase access to good-paying jobs, including for women, people of color, and members of other communities who are currently underrepresented in the sectors where these jobs will be created, such as transportation, clean energy, and broadband. The Department of Transportation and the Department of Labor signed a memorandum of understanding to promote the creation of good infrastructure and transportation jobs with a focus on equitable workforce development using funding from the Bipartisan Infrastructure Law.
• Issued an Executive Order to promote diversity, equity, inclusion, and accessibility across the federal government – the nation’s largest employer – including by prioritizing efforts to close gender and racial wage gaps, address workplace safety and harassment, including in our national security workforce, and advance equity for LGBTQI+ public servants.
• Issued an Executive Order on Promoting Competition in the American Economy. This established the Administration’s policy of addressing anticompetitive behavior in labor markets, which can fall heavily on women and workers of color. The Order includes specific initiatives to promote competition in labor markets, including encouraging the Federal Trade Commission (FTC) to ban or limit non-compete agreements, and encouraging the FTC and the Department of Justice to strengthen antitrust guidance to prevent employers from collaborating to suppress wages or reduce benefits by sharing wage and benefit information with one another.