June Diversity, Equity, And Inclusion Update
June Diversity, Equity, And Inclusion Update
June 1st, 2022
Matt Glowacki, Diversity Equity & Inclusion Chair
Jefferson County HRMA & WI SHRM
How to Celebrate Pride in Your Workplace in 2022
A lot has changed in our workplaces in the past year. But the importance of diversity and inclusion hasn’t gone anywhere. And neither has the joy and power of recognizing the full value of everyone on your team. So today, we’re going to talk about how to celebrate your LGBTQIA+ employees in the workplace during Pride Month 2022, even if your office is remote.
What is Pride Month?
So, let’s start with the basics. Around the world, June is recognized as LGBTQ (Lesbian, Gay, Bisexual, Transgender, and Queer) Pride Month to commemorate a tipping point in queer history — the Stonewall Uprising, which lasted 6 days in Manhattan in June 1969 as police clashed with LGBTQ protesters.
(As a sidenote: Some people expand the LGBTQ acronym to LGBTQIA+, where the additional letters stand for queer, intersex, and asexual. There are many variations. But — to throw some more letters at you — the thing is that you don’t have to fall into one of these categories to celebrate Pride. Pride can, and should, be celebrated by all, even if you identify as straight or aren’t sure how you identify at all!)
Today, Pride celebrations attract millions of participants each year as queer communities and allies honor the queer identity through parades, workshops, parties, picnics, lectures, concerts, and more.
Why is it important to celebrate Pride in the workplace?
Kazoo Sr. People & Culture Specialist Jandee Speegle put together a totally knockout Pride calendar for Kazoo to celebrate Pride Month — even though our offices were full remote during the COVID-19 pandemic! Here’s what they had to say:
“It’s important to celebrate Pride in the workplace because we must acknowledge and recognize the accomplishments of the gay rights movement and our brave LGBTQ advocates. It’s about the people in the LGBTQ community and our allies who fight and continue to fight for equality.
“As human resources leaders, we have the power to put our people in the spotlight, showcase photos and stories that make us unique, and highlight our efforts around the importance of celebrating our diverse voices.”
Why is it even more important to celebrate Pride now?
Jandee points out, “We must not forget that the first Pride was not a celebration. It was a riot led by queer people of color. Pride was born out of a struggle. And now, the COVID-19 pandemic has brought struggle back to our LGBTQIA+ communities, as we are forced to lock down with families who may not accept us, or face new risks to our health or employment.
“Isolation isn’t new to our queer communities. It’s a challenge we face every day. So it’s even more important to celebrate our resilience, to unite virtually in the face of uncertainty. Just because we can’t be together in the flesh to march alongside each other doesn’t mean Pride is cancelled. It means we have to be innovative in finding ways to reach out to our communities that will keep pride alive! We must embrace the new normal and provide alternative spaces for all to feel connected and be safe.”
Ideas for celebrating Pride Month in the remote workplace
1. Get educated
You can’t be a leader if you don’t know where you’re going — or where you’re coming from. Create educational opportunities for your employees, sure. But first, make sure you’re versed yourself in the history and weight of Pride and the LGBTQIA+ rights movement.
2. Use your rewards platform to give to LGBTQIA+ causes
Studies show that workplace rewards have greater impact on engagement when they’re closely aligned with employees’ beliefs and values. (Don’t believe us? Check out our article, the Power of Recognition and Rewards.) If your employee rewards catalog doesn’t already offer a way for employees to contribute to charities, now’s the time to get started!
Some great queer orgs to support include PFLAG, the Transgender Law Center, and the Human Rights Campaign. Or, support local nonprofits
3. Get fun swag
This one is obvious, Jandee says. “You can’t celebrate Pride without great swag!” So splurge a little on rainbow flags, banners, and pins — and don’t forget to go beyond the rainbow, too. Did you know there are different flags to represent bisexuality, demisexuality, and asexuality, as well as a transgender flag, intersexflag, and many more? (In fact, one organization even made a Pride Flag Bingo card to showcase them all!)
4. Update your company email signatures
Add your pronouns to your email signature, Jandee suggests, and the statement, “I am an ally of the LGBTQ community and a member of [company].”
(Pro tip: Pronouns means how you identify — he/him, she/her, they/them, for instance — and how you’d like other people to refer to you. This is a great, inclusive practice for everyone, even or especially if you’re cisgender!)
5. Switch up your Zoom background
Love it or hate it, we’re all on Zoom. So celebrate with your background! Workplace advocacy group Out & Equal has assembled a great collection you can access here — including Pride parades and affirming messages.
6. Update company social media pictures with Pride frames or filters
And provide your employees with tips and resources for how to do the same. (Though, as always, be respectful of your employees’ work-life divide; never force employees to change their personal social media for work.)
7. Fill up your company calendar
In-office? Remote? No problem. The Kazoo People & Culture team have knocked it out of the park with digital culture events, and thanks to Jandee, Kazoo’s Pride Month is one for the books.
Here are the Pride culture events Jandee built out for Kazoo:
June 3 – Pride Bake-Off
We Kazooligans take our home cooking and baking skills seriously — and just because we’re in the office doesn’t mean we can’t show off. On June 3, our home chefs will post photos of their masterpieces in our company Slack, and everyone votes with Pride flag emojis! Bring this challenge to your own office (and check out our social media in the coming weeks to see what we cook up)!
June 4 – Pride-themed Bingo
Jandee used the website My Free Bingo Cards to run a lunchtime Pride Bingo game! It’s easy and free to make your own — just brainstorm a list of at least 25 Pride-related words and you’re good to go.
June 8 – Pride virtual puzzle
Not every Pride celebration has to be a full-on parade: Sometimes, the most important thing is just to spend time together, virtually or in person. For this chill lunchtime event, Jandee worked with Kazoo’s Brand team to create a Kazoo Pride logo, then created custom jigsaw puzzles and sent them to each employee in a Pride-themed swag bag.
The updated Pride flag includes black and brown, to represent marginalized queer communities, and pink, light blue, and white, which are used on the Transgender Pride flag.
The event is sweet and simple: During lunch, the staff can log on and chat while completing our puzzles together.
June 10 – Pride-themed paint and sip
We’re bringing happy hour back! And you can, too. Give your employees advanced notice, plus a list of supplies (go the extra mile by providing a list of links to inexpensive canvases and paints), and find a Pride-themed image or message for everyone to paint. Then, reserve a time after work for a Zoom gathering, and let the fun begin! No artistic ability required.
June 18 – Pride trivia: Flags and history
Form teams and get to guessing! Mix in fun, culture, and education. Jeopardy Labs has a premade trivia game. Or, you can find a premade list of questions, like this one from PFLAG Olympia.
June 18 – Pride-themed happy hour movie
Netflix’s watch party app makes it easy to watch movies together digitally — or, try streaming them in Twitch. Not sure what to screen? Here’s a recent roundup of 30 Best LGBTQ Movies of All Time.
June 18 – Pride trivia: Guess the song
Throw together (or find) a big, gay playlist, and let the trivia begin! This super fun, lightning-fast trivia game requires players to identify the title and artist of each queer anthem by listening to just the first 3 seconds of the song. It’s tricky, it’s fun, and it’ll get everyone laughing (and humming!) along.
June 24 – Pride party drag show with Wild SF
Join the artists and activists of Wild SF for an incredible virtual drag show. This team-building event opens and closes with rock star drag performances, and in between, the hosts teach queer history, run queer trivia, facilitate ice breakers, and do a Q&A. (This was one of our team’s favorite events of Pride 2020, and we look forward to repeating it every year!)
June 29 – Pride-themed quarantine
Round out Pride with an online mixer! Make time after work for everyone to “share” a beverage and discuss their experiences with Pride. If you’ve got a big crowd, break out into small groups to discuss questions like, “What was the first Pride you attended?” and “What does Pride mean to you?”
It’s always the right time to focus on diversity and inclusion — but this year more than ever. Because the work is far from done.
As a human resources leader, you have a unique amount of power to make your workplace not just safe, but celebratory for all. Thank you (genuinely!) for seeking out ways to celebrate Pride, and please, in these coming days, weeks, and years, think about how your workplace is also a safe space for everybody, particularly black and marginalized workers.
LGBT Pride Month: Time to Embrace Workers' Authentic Selves
HR is responsible for creating a supportive, respectful and inclusive work environment for all
Researchers in the field of organizational dynamics have begun to study and critically consider how our work and nonwork lives overlap in the digital age. The trend toward such blending and crossover appears inevitable as we move into an increasingly virtual and global world (which includes more contract—or "gig"—workers, remote workers, and workers employed for shorter periods of time). With this greater overlap between our working and nonworking lives comes a question about the authentic self.
Who are our authentic selves? To what extent do we show our authentic selves in the workplace? As our workplace, home and social lives intertwine, is the next step to begin showing more of our authentic selves to our leaders, co-workers and customers? That would seem risky, even scary, to most people.
For some populations of workers, however, this is not a new issue at all. Members of the LGBT (lesbian, gay, bisexual and transgender) community have struggled for many years with the question of showing their authentic selves. One could argue that this group has struggled since the beginning of work itself—and certainly in work in the Western world over the last two centuries. Because of bias, insensitivity, prejudice and fear, members of this community have often been unable to show their authentic selves in the workplace.
This is unfortunate. A workplace is, by its nature, built for activities that provide services or products of value to customers, and which bring rewards to the organization in return. Nowhere in this simple equation does an individual's (the worker's or the customer's) gender identity or sexual preference matter.
As HR professionals, we have a duty to apply the competencies of Global & Cultural Effectiveness and Ethical Practice to ensure that our organizations do not allow biases about LBGT workers to cause others to forget why the organization exists, what its mission is, and how inclusivity and respect for diverse views and behaviors help the organization, both in the short term and to ensure sustainable success.
June is LGBT pride month. Many in the HR profession are members of the LGBT community or have family or friends who are, and many will be participating in the pride celebration events occurring around the world. While it's not necessarily the responsibility of all HR professionals to jump full-throttle into those celebrations, it is our responsibility to create a supportive, respectful and inclusive work environment. In such a workplace, everyone feels that they are a part of the organization and its mission, and all workers are respected for the value they add to the organization in producing the outcomes it desires for itself and its customers.
More organizations today have diversity and inclusion programs than ever before. SHRM research in this field indicates that the number of organizations with dedicated diversity and inclusion or related programs has steadily increased in recent years. This is good news for those organizations, their workers and customers, and society in general.
But there are many organizations that have yet to take a more embracing stance of the LGBT community. This month, HR and other organizational leaders should do more than apply the competencies of Global & Cultural Effectiveness and Ethical Practice. We must also apply the Leadership & Navigation competency and help blaze new trails. Seeing more of the authentic selves of your workers is not something to fear. It's something to harness for the greater good of the organization, as a competitive advantage and to help achieve the company's vision.
Here are some ways for HR to take a more inclusive and supportive stance toward the LGBT community:
- Create a function in the organization dedicated to diversity and inclusion, if one does not already exist. If you're a SHRM member and are not sure where to begin, see our recently posted how-to guide on How to Develop a Diversity and Inclusion Initiative.
- Begin to support or follow programs of research examining issues and trends related to and of importance to the LGBT community.
- Become more familiar with LGBT issues and interests by reading posts and blogs online or by attending events such as the SHRM Diversity & Inclusion Conference & Exposition in October.
- Build an LGBT community of interest or networking program at your workplace.
- Promote open dialogue and discussion in your workplace around issues related to diversity and inclusion.
- Ensure that your organization has a no-tolerance policy regarding discrimination of any kind, and make attendance in anti-harassment training mandatory.
How Some Employers Are Addressing Weight Discrimination
When Emma Gordon was working as an intern, she was on medication for an illness she was experiencing at the time. The medication caused a notable weight gain.
"Several of my superiors would often make derogatory comments about my size," said Gordon, who is the founder of US Salvage Yards in Los Angeles, an online auto salvage company with 70 employees. "Their continued harassment took such a heavy toll on my mental health that I left the company."
Gordon isn't the only employee who has felt singled out after facing workplace discrimination for being overweight. According to a Vanderbilt University study, women who are overweight make less money than both women and men of average weight. And a U.K. study found that respondents believe overweight people are weaker-willed and lazier than average-weight employees.
While the U.S. Equal Employment Opportunity Commission has federal laws that protect employees from being discriminated against because of their race, religion, sex, color or gender identity at work, weight is not included. In fact, only one state, Michigan, protects employees from weight discrimination in the workplace, said Lori Armstrong Halber, a partner at Fox Rothschild LLP in Warrington, Pa.
It's worth noting that Washington, D.C., prohibits discrimination based on personal appearance, which could encompass weight, and the Americans with Disabilities Act might provide coverage for individuals who are morbidly obese, she added, depending on the circumstances of the job.
"Regardless of whether weight is a 'protected class,' an employer that focuses on things other than an applicant's or employee's skills, abilities and experience is doing both the individual and itself a disservice," Halber said. "You could be missing out on an incredibly talented and engaging employee based on your bias. Employment decisions should be based on business reasons, not stereotypes or assumptions based on stereotypes."
Some employers have created policies to ensure they avoid weight discrimination in the workplace. Here are some examples.
Change the Culture
Anna Burns, founder and CEO of Seen@Work, a diversity, equity and inclusion consulting firm in New York City, was the target of body shaming. While working in a previous position, the chief people officer of her company watched her as she ate a cupcake. She told Burns, "These look so good, but I shouldn't. I'm going to the beach this weekend."
Burns said the implication was that "if she ate a cupcake, like me, she'd get fat, like me, and therefore couldn't possibly go to the beach and look good. This was painful, and I talked it through with a straight-sized [not overweight] colleague who had witnessed the whole thing. As an ally, and with my consent, they approached the woman who did this, kindly and empathetically, to inform her of the harmful implications behind her words and attitude, and the impact they'd had on me."
Unfortunately, the chief people officer got defensive and couldn't see that she had done anything wrong. She stood by what she said.
"I left the company not two months later," Burns said.
To prevent similar situations at work, Burns suggests creating an environment where commenting on other people's bodies and complimenting weight loss is discouraged. Discussions that focus on diet culture or moralize bodies, food or exercise need to be avoided, as well.
Her advice? "Call people into discussions when they engage in weight discrimination or body shaming," she said. "Anti-fat bias is so prevalent that many times people don't understand that what they're saying or doing is hurtful, offensive or discriminatory."
Institute Zero-Tolerance Policies
Along with shifting the culture, it's also important to formalize policies in writing, Burns said. Make it clear in the employee handbook that while it is wrong to discriminate against someone for their race, gender, color, religion or sexual orientation, it's also wrong to discriminate because of weight.
"Pre-empt weight discrimination and body shaming by explicitly including size inclusivity in your nondiscrimination policies and by actively educating your team on size inclusion," she said.
Bullseye Locations introduced a formal policy to combat weight discrimination after Joshua Rich, then-CEO and founder of the software company with 20 employees in Branchburg, N.J., hired someone who was obese. The employee impressed Rich with his confidence and skill set.
However, "I always caught him sitting alone during the break times, and his enthusiasm seemed to have vanished," Rich said. "I figured out that due to weight stigma, people weren't trying to make the new employee comfortable in the workplace."
Rich stepped in to rectify the situation. He gave his employees extensive training and introduced a zero-tolerance policy for weight discrimination. Now, employees cannot make any negative comments about weight either to or about their overweight co-workers.
"This has made the situation much better for my new employee," Rich said. "My belief is that the change around the workplace regarding weight discrimination can only come through strict policies, as there is no way people's mindsets are going to change without them."
Utilize Employee Groups
One way to prevent weight discrimination and create positive experiences for overweight employees is to develop employee groups that address the issue, said Burns, who advised one client to "launch a fat-positive or body-positive employee resource group to advocate for size inclusivity, encourage education around weight discrimination and body shaming, and normalize open discussions about eliminating microaggressions against fat people."
At US Salvage Yards, Gordon tells her employees to report any issues as soon as they arise. "We encourage workers experiencing this problem to speak out and report it to the HR department," she said. "Otherwise, those discriminatory behaviors might go unchecked."
Once Gordon finds out what happened, she addresses the situation directly. "We raise the awareness of weight discrimination by including it in conversations that deal with inclusion and diversity, we talk about it openly with workers, and we clearly state the no-tolerance policy that accompanies the consequence of this action," she said. "We do not accept discrimination of any kind in the workplace."
It's also critical for employers to check their own biases and be open to hearing about this type of discrimination. "Believe the experiences of fat people when they tell you they've experienced weight discrimination, body shaming or microaggressions, and take action in the same way you would with other discriminatory behaviors," Burns advised.
Create a Better Environment
While employment law has yet to catch up, companies that take steps to stop discrimination toward their overweight workers cultivate a better workplace atmosphere for everyone involved.
"It's important that we stop discriminating against people based on their weight, as this does not reflect an individual's personality, potential and skills," Rich said. "Any kind of discrimination leads to inhumane acts that may impact an individual's mental health. Hence, it is important that we recognize a person's true personality instead of discriminating against them based on their weight."
Kylie Ora Lobell is a freelance writer based in Los Angeles.
Five tips for discussing diversity at work with those who seem dismissive or resistant
Diversity and inclusion initiatives are supposed to make a workplace more equal and welcoming. But not everyone agrees on quite what that looks like or whether it’s important. Indeed, some people can be dismissive or even opposed to the idea.
Let’s be clear: people from marginalized groups shouldn’t have to engage in debates about their dignity or worth, as some would have them do. But on other more general issues like inclusion or positive action initiatives, people can act resistant or dismissive if they don’t understand the concepts being used or aren’t clear on what an initiative is for. It’s what workplace psychologists term “diversity resistance”.
Having as many people as possible take part in inclusion efforts really helps to actually make progress. So at least trying to have a conversation is important. And even if that person isn’t convinced, you may be helping onlookers to understand. Here are five steps that can help you get started.
Approaching someone about diversity can seem confrontational. It’s also easy to get angry when someone appears to be threatening or belittling.
- Drop the temperature
So, before you don your armor and grab your sword, try to take a moment to cool down. As Lemony Snicket says, “If everyone fought fire with fire, the whole world would go up in smoke.” Instead, approach the conversation with curiosity. You can learn from this person in the same way that they can learn from you.
There’s a limit to this of course. You should never have to put up with harassment or a hostile working environment, even if it is ostensibly framed as someone’s lack of understanding or “just playing devil’s advocate”. Some will never get on board, and you should work out when to stop engaging, if necessary. There’s also a balance to be struck between talking about inclusion and actually taking action.
2. Prepare the script
Research shows that we often depend on scripts for social situations, especially those that are potentially tense, emotional or confrontational. Think of how we use certain stock phrases at funerals, for example, to avoid saying the wrong thing.
To keep the conversation on track, and to stick to step one, it can be useful to have a script ready, before you engage. Set out your stall and the reason for the conversation. Try to avoid phrasing that makes it seem aggressive or confrontational. The words you use will be best chosen by you as befitting your style and context, but it’s worth taking the time to consider them carefully before you speak.
3. Understand their reasons
Before you engage, try to work out why the other person is reacting negatively. Is it “reactance”? Psychology scholars use this term to describe the uncomfortable feelings, and subsequent negative reactions, that may arise when someone feels (correctly or incorrectly) that their free will is somehow being curbed.
Reactance has been used, for example, to explain the resistance to wearing a face-mask. Similarly, someone might react negatively to an inclusion initiative – particularly if it is something like mandatory unconscious bias training – if they feel that they feel that they are losing autonomy.
Or is it fragility? Fragility relates to the negative reactions (anger, fear and guilt) and behaviors (arguing, deliberate silence, or exiting the conversation) one has when confronted with issues of discrimination or privilege. Discussions and initiatives concerning racial diversity and inclusion, for example, often trigger “white fragility”.
4. Explore why it’s important
Many people don’t want to openly criticize an inclusion initiative publicly (at an all-staff meeting, for example). They might however mutter about it among their team or close colleagues.
This could be because they think that it will be ineffective. They may be right. We often don’t know how effective an inclusion initiative will be. Maybe their experience of the organisation or technical insight could be useful here. That could be one way of getting them to join the conversation, even if they don’t necessarily understand all of the background concepts or topics in depth.
It could also be that they don’t see the point or importance of the initiative. In this case, a one-to-one conversation that allows the person to openly question the concept or initiative may be useful. You might be the right person to initiate that conversation. Or, if you aren’t, think about who might be.
5. Acknowledge that you don’t know everything
No one knows everything. I’ve researched equality, diversity and inclusion for over a decade and I still benefit greatly from the insights my students, co-authors and colleagues share. Inclusion is a complex and constantly evolving topic.
Acknowledging your own ignorance drops the temperature. You go from a teacher-and-student dynamic to two people trying to figure things out together. Share what you do know. Signpost to resources from those with that lived experience. And listen.
The person you’re talking with might also give you insight into what they’re thinking, their experiences, or how they arrived at their current thinking. These are all important things to know for future conversations. And the hope, really, is that you will keep talking.
How The Conversation is different
Every article you read here is written by university scholars and researchers with deep expertise in their subjects, sharing their knowledge in their own words. We don’t oversimplify complicated issues, but we do explain and clarify. We believe bringing the voices of experts into the public discourse is good for democracy.
What’s the Matter with Workplace Wellness?
In March 2022, Yale University announced a motion to settle a class action for $1.29 million after employees alleged that the University’s Health Expectations Program violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). About 6,000 union employees were required to participate in the program, designed to encourage employees to take advantage of preventative health services, or else pay a weekly opt-out fee of $25 per week ($1,300 annually). The program required participants to receive medical screenings and share the results with Yale’s health care providers. Workers considered high risk, including those with conditions like diabetes, were required to receive “health coaching” to comply. Employee wellness programs like this one promise a win-win: keep workers healthy while reducing healthcare costs for employers. However, as they have become more prevalent, their effect on health remains dubious. What is certain is that they open a window for employers to peer into employees’ lives outside of work, raising serious concerns about worker privacy and workplace discrimination.
As of 2019, 88% of large employers (200 or more workers) offering health benefits also offered some kind of worker-wellness program. Many, like Yale’s, feature financial incentives in the form of penalty fees or rewards like reduced healthcare premiums. Under the Affordable Care Act (ACA), employers may offer financial rewards of up to 30% of the cost of healthcare premiums to incentivize workers to participate in wellness programs. As of 2019, 20% of large employers offered up to $1000 in incentives. Worker-wellness programs vary considerably, and many tie incentives to participation alone, offering free membership at a fitness center, or a reward for participating in health education seminars. However, the ACA also allows for nondiscriminatory “health-contingent wellness programs,” which require participants to meet certain health goals.
In spite of their popularity, the effectiveness of worker-wellness programs has been questioned. The most comprehensive study yet on the topic delivered underwhelming results, showing no substantial effects on sick days taken or health care spending, and no significant gains on objective health measures like cholesterol. More workers did, however, report taking conscious effort to improve their health. These lackluster results belie a major problem with wellness programs, which also confounds the ability to measure their effect: people who are already in relatively good health are much more likely to participate. Others who struggle with the health metrics considered by wellness programs can feel alienated by them, while some may be physically unable to participate at all.
Indeed, accusations of disability discrimination have plagued employee wellness programs, which may penalize workers who cannot participate due to disability, or who may avoid participating in order to avoid disclosing a disability. The lawsuit brought against Yale for its Health Expectations Program arose from confusion and conflict where the ADA, GINA, and ACA meet. The ACA specifically authorizes financial incentives for workplace wellness programs, but the ADA and GINA require that employee participation in wellness programs that involve sharing medical information remain “voluntary.” The Equal Employment Opportunity Commission (EEOC) defines “voluntary” programs as those which neither require participation, nor penalize workers for opting out. How much carrot or stick is too much for a program to be truly voluntary? The Yale case suggests that program fell on the wrong side of this thin line. However, the settlement leaves open the issue of whether financially significant rewards or penalties in wellness programs constitute coercion in violation of the ADA.
Laws like the ADA or Title VII of the Civil Rights Act of 1964 protect against employment discrimination on the basis of certain characteristics like race, gender, and disability. However, wellness programs often implicate characteristics that are not protected by law, most prominently weight. Obesity alone is generally not considered a disability under the ADA, and therefore not a protected characteristic. Body Mass Index (BMI), relied upon in wellness programs and well beyond to define obesity, is questioned as an indicator of health.
Nonetheless, by that metric, nearly 2/3 of American adults can be considered obese. Wellness programs discriminate against workers based on weight most directly through outcome-contingent programs that impose a financial penalty on those who fail to either reach a certain weight or take prescribed steps to try to lose weight. Even programs that don’t financially penalize workers for their weight send a pernicious and discriminatory message that employees considered overweight, or those managing conditions like diabetes or high blood pressure, are less efficient, more costly, and less valuable to the firm.
Encroaching on Worker Privacy and Autonomy
Legal scholar Ifeoma Ajunwa has written extensively about the danger that worker-wellness programs pose to employee privacy. She describes worker-wellness programs as a kind of “participatory surveillance.” Wellness programs sometimes ask workers to turn over biometric information directly through screenings. Some programs offer workers wearable devices like FitBits to track activity metrics like steps taken in a day. According to Ajunwa, this data may remain accessible to employers. Further, when programs are run through third party companies (as is often the case — employee wellness programming has grown into an $8 billion industry), workers often have no knowledge or control over how their health data will be used. Overall, wellness programs significantly expand the employers’ gaze into workers lives off the clock.
Nowhere is this more evident than with regard to workers’ smoking habits. The financial reward that employers may offer for participation in wellness programs under the ACA rises from 30% to 50% of the cost of healthcare premiums for programs specifically intended to help workers quit smoking. The health case against smoking is so strong that it almost obviates just how far outside their lane employers have been allowed to step in order to discourage it. Recent conflict over workplace Covid-19 vaccination mandates has made the question of what health measures employers can demand workers take in their private lives especially salient. However, unlike vaccination status, it is not clear how smoking off the job poses any danger to others at work.
Well-Washing Dangerous Working Conditions
Beneath the purported benefits and drawbacks of workplace wellness lies an undeniable feeling that the whole phenomenon is a piece of theater. From days spent at desks to the repetitive motion of a warehouse order picker, workers face a slew of mental and physical conditions that can be tied back to the workplace. Long hours are among the most widespread and pernicious dangers to employee health. Rather than provide a concrete unconditional benefit like shorter hours or more frequent breaks, worker-wellness programs effectively leverage employer’s power over workers to put extra pressure on them to take health measures on their own. Some programs, like Amazon’s “Amazen” program that encourages workers to step into guided meditation booths to focus on their mental and emotional well-being amid 10-hour “megashifts” feel downright dystopian.
Employee-wellness programs never claim to be entirely altruistic, instead cast by proponents as providing a mutual benefit to workers and employers. As a matter of public health policy and employer initiative, this proposition cannot be serious in the absence of real measures to address the toll that work itself takes on employees’ physical and mental health.
United States: Supreme Court Discrimination Case Narrows Scope Of Restitution For Individuals
Last month, in Cummings v. Premier Rehab Keller, P.L.L.C., the Supreme Court denied a petitioner's right to emotional distress damages in a private action brought under federal anti-discrimination laws. The Petitioner, a woman who is both deaf and legally blind, alleged that when she requested an American Sign Language interpreter at Premier Rehab Keller ("Premier"), the clinic denied her request, resulting in her inability to receive treatment. She filed suit under Section 504 of the Rehabilitation Act ("Rehab Act") and Section 1557 of the Affordable Care Act ("ACA"), two federal statutes that prohibit recipients of federal funding from discriminating in the delivery of services based on disability. The Fifth Circuit dismissed her claim, reasoning that emotional distress damages are categorically unavailable in private actions and cannot be used to enforce either the Rehab Act or the ACA. As explained below, the Supreme Court affirmed the Fifth Circuit ruling.
Narrowing Scope of Relief for Victims of Discrimination
This decision is notable because it cemented an enforcement trend for two major discrimination laws at a time when healthcare disparities are at the forefront of national discussions. The Supreme Court communicated its intent to limit enforcement in several ways. First, the decision resolved a previous split between the Fifth Circuit and the Eleventh Circuit; the latter of which ruled, in 2007, that emotional distress damages are available under the Rehab Act.1 Second, the decision effectively narrowed the scope of restitution available under both the Rehab Act and the ACA. Third, and most notably, the decision continued the pendulum-like treatment of Section 1557 that was introduced under the Obama administration.
The Obama-era Section 1557 regulations explicitly provided a private right of action, including access to compensatory damages.2 But the Trump Administration Section 1557 rules repealed several of those provisions-including the express statement of a private right to action.3 In 2021, the pendulum swung back to a wider scope with the Biden Administration recognizing sexual orientation and gender identity as categories protected under Section 1557 for the first time.4 Although the Office of Civil Rights ("OCR") has articulated its intent to interpret relief available under Section 1557 more broadly, in this ruling the judicial branch swings the pendulum back toward a narrower application of the statute.
Since Section 504 and Section 1557 no longer provide explicit remedies for affected individuals, enforcing courts have considerable interpretive discretion on the issue of restitution.
The entirety of the Court's reasoning in Cummings came from the contract-law theory established in the 2002 case, Barnes v. Gorman.5 According to this theory, laws governing federal programs operate by "conditioning an offer of federal funding on a promise to the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds."6 The theory holds that this implied contract is only valid if the recipient of federal funding voluntarily and knowingly accepts the terms of the contract, and that the recipient may only be considered "on notice" of liability for those remedies traditionally available in suits for breach of contract. In other words, if a Medicare/Medicaid provider is found to have discriminated in violation of the Rehab Act or the ACA, that provider can only be held liable for "traditional" contract damages. But what constitutes "traditional" contract damages?
Although Petitioner cited a provision in the Second Restatement of Contracts, asserting that traditional contract remedies do include damages for emotional distress (as long as a contractual breach is particularly likely to result in emotional disturbance instead of economic loss), the Supreme Court insisted that this exception was too obscure.
Takeaways for Future Discrimination Cases
Today, the Supreme Court is unpersuaded by legal arguments that do not align with Barnes. The dissenting opinion and multiple amicus briefs filed by civil rights groups, including the ACLU and the NAACP, emphasized the purpose of the discrimination laws, insisting that the intent behind these statutes cannot be to leave victims with no remedy at all just because damages are not monetary in nature. Given its willingness to overlook this rationale, however, the Supreme Court will require a stronger argument in order to part with Barnes.
For now, future plaintiffs can rely on traditional contract remedies, such as compensatory damages or injunctions. To force a departure from Barnes, plaintiffs must provide substantial support, both in law and fact, to persuade the Court that the defendant necessarily must have been on notice of its liability for the type of damages sought.
Until then, the Cummings decision significantly limits the options plaintiffs will have in court, as well as the leverage they will have in settlements with recipients of federal funding. Outside the formal judicial process, civil rights groups might consider using the contract-law theory to their advantage by pushing to include clearer and more comprehensive remedies in participation agreements between the government and recipients of federal funding to satisfy the notice and consent requirements.
Fortunately for program participants, OCR, no doubt energized by the current national movement for social justice, is currently developing a new set of regulations that would once again broaden the scope of Section 1557. Thus, we may see the pendulum swing once again in the direction of broader protection for victims of discrimination, led by the OCR's current appetite for enforcement.
Increased social awareness and workplace transparency have made pay equity more than just a standard compliance issue for many businesses today. In addition to avoiding potential litigation, forward-thinking employers who implement fair pay policies may be able to improve their organization’s reputation, keep employees engaged and attract new talent.
What is pay equity?
Pay equity is the concept of compensating employees who have similar job functions with comparably equal pay, regardless of their gender, race, ethnicity or other status. Yet, this practice is often more complex than simply eliminating biases. Employers must weigh other factors, like the employee’s education and work experience, the responsibilities of the position, and the organization’s long-term financial stability.
Why is pay equity important?
While pay equity has merits in social responsibility, it’s also important to a business’s bottom line. Employers who implement fair pay policies may be able to:
Federal laws governing pay equity were first enacted in the early 1960s. The two most notable are:
- Prevent discrimination lawsuits
- Comply with equal pay regulations
- Improve productivity and morale
- Reduce workplace turnover
- Attract talented new employees
- What laws govern pay equity in the United States?
- Equal Pay Act of 1963
This law states that men and women employed at the same business should receive equal pay for equal work.
- Title VII of the Civil Rights Act of 1964
Title VII offers broader protections than the Equal Pay Act and prohibits pay discrimination based on not just gender, but also race, color, religion and nation of origin.
Pay equity examples
The Equal Pay Act emphasizes the importance of job function over job title. Take administrative assistants and secretaries for example. These roles are typically similar in nature, so if one was performed by a male and the other by a female, and both had the same level of education and experience, then the two should receive relatively equal wages under the law.
How are state and local governments addressing pay equity issues?
Almost all states have equal pay laws, some more elaborate than others. New York, for instance, has expanded the definition of equal work to include “substantially similar” work.
Pay scale disclosure laws
Some regions of the country believe that transparency is an important part of improving pay equity. Colorado and New York City (effective November 2022) are the most stringent in this regard, requiring businesses to include the minimum and maximum pay range in their job advertisements. Employers, more than ever, will need accurate compensation data to comply with these regulations, which could become a trend in other states.
Salary history bans
Another way that state and local governments are addressing pay discrimination is by prohibiting salary history inquiries. Like other pay equity regulations, these bans vary greatly. For instance, laws may:
To help ensure compliance with state and local pay equity laws, employers should check state legislature websites or seek legal counsel.
- Prevent employers from setting compensation based on salary history
- Restrict questions about salary history entirely
- Permit inquiries post-offer, but not pre-offer
- Treat internal and external job applicants differently
How can employers implement or improve their pay equity policies?
Complying with pay equity legislation often starts with taking a hard look at existing company policies and making proactive changes, such as:
- Documenting pay equity strategies and updating job descriptions and pay structures to align with new policies.
- Communicating with employees about the company’s pay equity goals and how it plans to achieve them.
- Adjusting recruitment and talent management tactics if one particular race or gender constitutes the majority of certain roles or departments.
- Conducting a pay equity analysis to identify any potential wage gaps that may be the result of discrimination and correcting them.
- Partnering with a professional employer organization (PEO) for additional support managing compensation data and pay audits.
What is a pay equity analysis?
A pay equity analysis is a statistical way of identifying pay gaps within an organization. It does so by cross referencing pay scales against any number of criteria – gender, ethnicity, education, seniority, etc. Discrepancies that cannot be explained by legitimate, non-discriminatory reasons require further investigation and corrective action on behalf of the employer.
How do employers perform a pay equity analysis or audit?
A pay equity audit is a complex process that requires data analysis and the expertise of financial advisors and attorneys. Businesses that have these resources available to them generally follow these steps:
- Lay the groundwork
Agree with key stakeholders on the reason for the audit, its methodology, scope, budget and timeline.
- Have historical perspective
Knowing how the current pay scales were created can help address any potential issues that are found as a result of the audit.
- Collect workforce data
The scope of the audit largely dictates the type of information gathered, but most look at job function, gender, race, experience, length of service and job performance, among other factors.
- Compare employees with similar job functions
During the comparison, it’s important for employers to understand the pay equity laws in their state, since some have broader definitions of “equal work” than the federal government. “Comparable” and “substantially similar” standards may apply.
- Review and interpret the findings
If differences in pay are discovered, do not automatically assume that they are illegitimate. Those based on merit, seniority and quantity or quality of production are generally acceptable. Look for wage gaps that could be directly related to protected characteristics.
- Correct wage gaps that are not justified
Consult with leaders in HR and finance on the most fiscally responsible way to increase the wages of any employees who may have been the subject of discrimination. Cutting pay to fix wage gaps is generally prohibited.
What are some best practices for fair pay?
In addition to performing a pay equity audit, employers may be able to reduce pay inequality by following best practices, such as these:
- Review compensation trends
Track how pay matches up to different groups of employees and use external benchmarks to create hiring and compensation practices that are consistent with industry standards.
- Be transparent about pay
When employees know how pay decisions are made, it helps create an environment of trust and compels managers to justify that raises are based on performance.
- Prohibit salary negotiations
Rely on clearly communicated objectives as the rationale for bonuses and raises instead of reacting to employees who ask for more money or threaten to leave.
- Prioritize budgets
Because it’s a financial investment, closing wage gaps requires careful budget planning and the ability to manage conflicting priorities.
Frequently asked questions about pay equity
What are the factors that relate to pay equity?
While it’s true that pay equity is about achieving equal pay for equal work, there’s more to it than just that. Employers must also weigh their employees’ education, experience or skill level, years with the organization, and performance to create pay scales that are based on merit.
What is the Equal Pay Act?
An amendment to the Fair Labor Standards Act, the Equal Pay Act prohibits wage discrimination based on gender. It covers all forms of compensation and applies to men and women who work for the same employer and have substantially equal jobs. If a wage inequality is discovered between individuals who meet these criteria, the employer must correct it by raising wages, not cutting them.
How is pay equity calculated?
The gender pay gap is generally estimated by dividing the median earnings of women by the median earnings of men and expressing the answer as a ratio or percentage. Results vary depending on if the wages were adjusted for variables, such as occupation, hours worked, education and work experience.
How do you ensure internal pay equity?
Achieving pay equity is a multi-faceted process that takes time and depending on internal resources, may require external help to be fully realized. Despite these challenges, businesses typically can ensure their compensation policies are fair by:
- Researching what other businesses in the same industry are paying employees
- Refraining from salary negotiations, which can put women and underrepresented groups at a disadvantage
- Basing raises and bonuses strictly on performance and merit
- Analyzing results from a pay equity audit to spot signs of wage discrimination
What is genetic discrimination, and why does it matter?
Individuals who are referred for genetic testing for hereditary cancer or other medical conditions may have concerns about the risks of testing, especially if a mutation is discovered, and how this information might be used by others. Genetic discrimination refers to a difference in treatment for an individual based on their genetic information (ie, hereditary predisposition to a disease). For example, an individual may wonder whether their health insurance will be affected if they are found to carry a gene mutation that places them at high risk to develop cancer in their lifetime. This individual may also be concerned about losing their job if their employer discovers they have high risk for a disease. In both scenarios, the person is expressing a concern for genetic discrimination.
Genetic discrimination is an extremely important topic, as it may affect an individual’s decision to pursue genetic testing, which ultimately may impact their health care. If an unaffected individual with a significant family history of cancer is found to carry a gene mutation that increases their risk for breast cancer, they may be candidates for early and increased screening or surgery to prevent or detect cancer early when it is highly treatable. However, these measures would not be taken if the individual chose not to pursue genetic testing for fear of genetic discrimination.
The Genetic Information Nondiscrimination Act (GINA) of 2008 is a US federal law that provides individuals protection from genetic discrimination for health insurance (Title I) and employment (Title II). GINA defines genetic information as information related to an individual’s genetic test results, family members’ genetic test results, and family history of a disease or disorder.
GINA prohibits health insurers from discriminating against enrollees based on their genetic information. Health insurers are not able to use genetic information to make eligibility decisions, determine coverage or premiums, or for underwriting. Additionally, health insurers may not require an individual or their family member to undergo genetic testing or require them to provide genetic information. As stated above, this includes information about family history of disease. GINA’s health insurance protections apply to private health insurers (group or individual), Medicare, Medicaid, Federal Employees Health Benefits, and the Veterans Health Administration. GINA does not apply to life, disability, or long-term care insurance policies. It is important to note that some individual states may have added protections for these types of insurance that are not protected by the federal law.
Regarding employment, GINA prohibits the use of genetic information for decisions such as hiring, firing, pay, and promotions. Furthermore, with a few exceptions, employers are prohibited from requiring or requesting genetic information from an employer. GINA’s employment protections do not apply to the United States military or employers with fewer than 15 employees.
The Americans with Disabilities Act (ADA) prohibits discrimination against disabled individuals in several areas, including employment. GINA protects employers from discriminating against an individual based on their genetic information, such as their increased risk to develop cancer, as in the example above. In contrast, the ADA protects individuals who are symptomatic, meaning they are already presenting with the disease (in this case, cancer), from discrimination as it relates to their current employment, including job seeking. Furthermore, the ADA also protects employees from discrimination based on perceived disability. For example, if an individual has a family history of a disease, they may be perceived to be at higher risk for this disease based on their family history. This is an example of perceived disability, and the employee would be protected from this type of discrimination by the ADA.
In summary, the protections provided by GINA have made a significant difference for individuals who are concerned about genetic discrimination. As clinicians, we are able to provide our patients with a level of reassurance, and as such, they can pursue the necessary genetic testing that may affect their health care. With that said, it is important for clinicians to keep in mind the limitations of GINA described in this article. These limitations also illustrate that there is still work to be done in fully protecting individuals from genetic discrimination. To help patients and individuals further, clinicians can provide the resources listed in the Table for those with further questions or concerns.
EEOC Issues Federal Workforce Report for 2019
People With Targeted Disabilities Show Gains; Retaliation Tops Complaint Bases
WASHINGTON -- The U.S. Equal Employment Opportunity Commission (EEOC) today released its Annual Report on the Federal Workforce for fiscal year 2019.
“The federal government is the nation’s largest employer, with just under 3 million employees, and reports like this are important to measure the federal sector’s progress in promoting equal employment opportunity and an inclusive work culture,” said EEOC Chair Charlotte A. Burrows. “Although only a snapshot, annual data on the federal workforce helps us focus our efforts to make the federal government a model employer with respect to protection of civil rights.”
The report revealed some encouraging news about people with targeted disabilities in the federal sector. The overall participation rate of this population rose from 1.05% in FY 2003 to 1.80% in FY 2019 – a 71% gain. This was driven by increases in the participation rates of individuals with serious difficulty hearing, serious difficulty seeing, and significant psychiatric disorders, the EEOC said.
The report showed that the federal government mirrors the private sector in one key respect -- of the 15,070 formal discrimination complaints filed in FY 2019, the basis most frequently alleged was reprisal/retaliation (7,487 charges). Retaliation has also been the most common basis for discrimination charges in the private sector for many years now.
The second and third most common bases in the federal sector are physical disability (4,252 complaints) and age (4,382) discrimination.
Carlton Hadden, director of the EEOC’s Office of Federal Operations, said, “We continue to see slow but steady progress in the federal sector with regard to key indicators of the EEOC’s mission to foster inclusiveness and eliminate discrimination.”
Among other significant findings:
The annual report informs and advises the President and the Congress on the state of equal employment opportunity (EEO) throughout the federal government. Data in the report, available online at www.eeoc.gov , are presented in government-wide aggregate form with agency-specific appendix tables.
- There were 36,348 counselings completed during FY 2019, with an alternative dispute resolution (ADR) offer rate of 87.06%, an ADR acceptance rate of 54.10%, and an ADR resolution rate of 66.50%.
- EEOC investigators spent, on average, 227 days to complete investigations during FY 2019, up 20% from the previous year. The average cost of an investigation was $4,288.
- The average monetary pre-complaint settlement was $4,023 per settlement, with a total government-wide settlement pay-out of roughly $3.1 million, down from $3.6 million in FY 2018.
- The total number of findings of discrimination, including AJ decisions and final agency decisions, have increased from 139 in FY 2018 to 175 in FY 2019 – over a 25% increase.
- In FY 2019, the monetary benefits obtained through settlements and awarded for findings of discrimination at the complaint stage, including AJ decisions and final agency decisions, amounted to over $53 million, a 1.7% increase since FY 2018.
- 4% of agencies reported that the immediate supervisor of the EEO director was the agency head.
The entire report is also available in PDF format here.
The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.
Today’s Business: Discrimination claims based on mental health rising
As Kevin Berling’s birthday was approaching, he asked his employer not to celebrate his birthday because it might trigger a panic attack due to his anxiety disorder. After the employee who planned office birthday parties forgot about his request, the birthday party went forward and Berling did suffer a panic attack.
Berling went to his car, ate lunch and told his manager by text that he was upset his request was ignored. He was confronted and criticized the following day — and had another panic attack. Three days later, Berling was terminated. Last month, a jury awarded him $450,000 for his disability discrimination claim.
Berling is one of the escalating number of employees claiming workplace discrimination based on mental health. About 30 percent of claims filed with the federal Equal Employment Opportunity Commission in fiscal 2021 involved mental health-related claims. EEOC Commissioner Andrea Lucas recently said that claims related to mental health “are going to start to explode into the public’s sight soon.”
The COVID-19 pandemic may be among the reasons for the increase in the last two years. The EEOC observed that “employees with certain pre-existing mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder or post-traumatic stress disorder ... may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.”
Specifically, anxiety and PTSD account for most of the federal mental health claims filed in 2021. The other mental health conditions include depression, bipolar disorder, schizophrenia and cumulative trauma disorder.
There is no federal list of medical conditions which meet the statute’s definition of disability. Rather, the condition must substantially limit a major life activity. Connecticut defines it more broadly, covering persons with a present or past history of mental disability.
If the employee’s mental health impairment may be covered under federal or Connecticut statute, the employer might be required to provide the employee with a reasonable accommodation. There are a wide range of possible accommodations based on the employee’s needs, such as permitting remote work, flexible scheduling, providing a leave of absence or providing a private workspace. Nevertheless, employers should not assume there is a need for an accommodation. An employer generally will not be required to accommodate an employee’s mental health impairment unless his or her medical condition is disclosed with a request for some kind of adjustment or assistance as an accommodation.
The COVID-19 pandemic is not the only catalyst for the increase in claims. Today, there is much greater awareness about the mental health challenges faced by employees. The stigma based on mental health has steadily declined — particularly among younger employees. As a result, more employees who in the past would have remained silent now are more willing to talk about their mental health challenges.
A variety of resources are available to employers. At the top of the list is the federal Job Accommodation Network. For example, JAN suggests that employers consider the following questions when seeking to accommodate those with mental health conditions.
1. What limitations is the employee experiencing?
2. How do these limitations affect the employee and job performance?
3. What job tasks are problematic?
4. What accommodations are available to reduce or eliminate these problems?
5. Once accommodations are in place, would it be useful to meet with the employee to evaluate the effectiveness of accommodations and determine if others are needed?
6. Do supervisory personnel and employees need training?
As May’s Mental Health Awareness month comes to a close, employers have an opportunity to invest in their employees. That investment will not just pay benefits for the one in five workers who navigate mental health challenges, it also will enable them to increase employee engagement, reduce turnover, reduce employee burnout and increase job satisfaction.
Gender Transitioning in the Workplace: An Employer’s Guide
As workplace protections expand for the LGBTQ+ community, transgender and non-binary employees may feel more comfortable being their authentic self at work. As a result, you should be prepared to work with transitioning employees. Consider developing a plan with your human resources department to educate the workforce and foster an inclusive work environment by creating policies that prohibit discrimination on the basis of gender identity or expression, allow for employee self-identification, address access to bathroom facilities, and make dress codes gender neutral. What should you know if an employee in your workplace is transitioning?
Understand the Meaning of ‘Transgender’
An important first step for employers is to understand what “transgender” means. “Transgender” is a broad term that may apply to a range of gender-nonconforming people. In general, a transgender person is someone whose gender identity or gender expression is different than their sex assigned at birth, and they may identify as male, female, or some combination of both or neither. Many people who consider themselves transgender do not undergo gender-affirmation surgery.
Additionally, while many transgender people do identify as male or female, some do not. They may refer to themselves as non-binary or prefer other terms to describe their gender identity, such as gender fluid, genderqueer, agender, or bigender.
A person’s sexuality and gender identity are separate statuses, and transgender people may identify as straight, lesbian, gay, bisexual, asexual, or another sexual orientation. In order to foster an inclusive environment, and avoid potential claims, it is important to avoid making assumptions about anyone's sexuality based on their gender identity.
Review the Evolving Legal Landscape
While some states have provided employment protections for LGBTQ+ workers for years, the U.S. Supreme Court’s landmark 2020 decision in Bostock v. Clayton County changed the legal landscape nationwide.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on color, national origin, race, religion, or sex. In the Bostock case, the SCOTUS held that workplace discrimination based on sexual orientation and gender identity is unlawful “sex” discrimination under Title VII. This means employers cannot lawfully make employment decisions – such as hiring, firing, promoting, or disciplining employees – based on a job applicant’s or employee’s LGBTQ+ identification.
The Supreme Court found that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The Court provided a workplace example to illustrate its point: An employer fired a woman because she is insufficiently feminine and also fired a man for being insufficiently masculine. Even if the employer treated them equally, it fired each worker because of their sex. “Instead of avoiding Title VII exposure, this employer doubles it,” according to the Court.
You should also review guidelines from the Equal Opportunity Commission (EEOC) – the federal agency that enforces Title VII – on sexual orientation and gender identity discrimination in the workplace. The EEOC updated its guidance in 2021 in light of the Bostock ruling.
Be sure to also review state and local laws, which may provide additional rights to LGBTQ+ employees in the jurisdictions where they work.
Prepare a Transition Plan
If you are approached by a transitioning employee or otherwise become aware of an employee transitioning, you should consider developing a detailed plan that broadly focuses on three areas: communication, education, and accommodation.
At the outset, the plan should designate one or more specific points of contact, so that employees — both those transitioning and their coworkers — know to who to call with concerns and questions.
Consider the following three points as you develop your plan:
You should create an inclusive and understanding environment to convey to your employees your acceptance and understanding. This includes distributing a written open-door policy for employees who wish to speak with management or human resources. If you invite employees with special circumstances to speak directly with someone in leadership, you may have a chance to respond to concerns before they escalate.
- Communication is Key
Once you learn that an employee plans to transition, you should engage in an open dialogue with that individual. Encourage the employee to self-identify their pronouns and make name or pronoun changes easily accessible.
You should also work with the employee to determine their anticipated timetable for the transition process. Discuss when and how the employee wants coworkers to become aware of the transition and when the employee wishes to switch names and use of pronouns. You should also review your dress and appearance policies, make them gender neutral by removing any standards based on gender stereotypes (such as requiring women to wear dresses and men to wear trousers), and allow transgender workers to follow standards that align with their gender identity and expression.
All employees should be permitted to use bathrooms and locker rooms that correspond to their gender identity. Anyone who is uncomfortable sharing restroom facilities with other employees for any reason should be welcome to use single-person, all-gender facilities, if available. If single-person facilities are not available, you should consult your HR department and legal counsel to balance all considerations in a fair and non-discriminatory manner.
Remember that coworker complaints or personal opinions do not supersede a transitioning employee’s rights to express their gender identity and to be free from discrimination and harassment for doing so.
Once those matters are addressed, you should educate your workforce and encourage an environment of tolerance and mutual respect. As part of the education process, make sure all employees know that they should use the transitioning employee’s new name, if applicable, and use the appropriate pronouns for the employee’s gender identity.
- Educate Your Workforce
One common issue many transgender people experience is misgendering, and if done intentionally over time could create potential for hostile work environment. A simple way to demonstrate inclusivity is to encourage all employees to specify their pronouns of choice on company email signatures or other personal identifying communication.
Education is a key part of the plan. Open forums may encourage the respectful exchange of concerns and suggested approaches. If a transitioning employee reports any incidents of perceived harassment or discrimination, you should take immediate steps to investigate those concerns and remediate any confirmed instances of unlawful discrimination.
Finally, when possible, you should consider requests for reasonable accommodations from transitioning employee, such as flexibility or time off for doctor’s visits or to address the side effects of hormonal changes or gender reassignment surgery. Sometimes an accommodation has a minimal cost or burden and is well worth the effort. This is especially true if it prevents a costly discrimination claim and fosters an inclusive environment that focuses on retention of workforce talent.
- 3. Explore Reasonable Accommodations
A good starting point is to simply ask what workplace accommodations the employee would like during the transition process. At a minimum, you should keep lines of communication open with transitioning employees and review their accommodation options. Workers are less likely to become disgruntled, and seek out counsel, if you acknowledge their concerns and work with them to find solutions.
You should review your policies and practices to ensure compliance with the Supreme Court’s Bostock ruling, the EEOC’s updated guidance, and applicable state and local laws.
We’ll continue to monitor developments in this area and provide updates as warranted. Make sure you are subscribed to the Fisher Phillips Insight service to ensure you receive the latest news directly to your inbox. For further information, contact your Fisher Phillips attorney or the authors of this Insight.
EEOC Releases Report On Federal Workers With Disabilities
The U.S. Equal Employment Opportunity Commission (EEOC) has been busy of late: Last week the agency warned employers about the potential for the use of artificial intelligence (AI) technology to violate the Americans With Disabilities Act (ADA). Now the organization charged with enforcing federal laws prohibiting employment discrimination has issued a report noting that while opportunities for people with disabilities in the federal workforce are improving, more work needs to be done in the areas of retention and leadership representation.1
The study, titled "The EEO Status of Workers with Disabilities in the Federal Sector," compiled demographic data about federal workers with disabilities, hiring, promotion, and separation from employment at federal agencies. The report also examined complaints about discrimination based on disability, and ways that the government is improving accessibility for persons with disabilities.2
- New EEOC study shows improved opportunities for federal employees with disabilities, but a need for more progress when it comes to retention and leadership representation.
- The study, released May 19, 2022, compiled data on hiring, promotion, separation from employment, complaints about discrimination, and attempts by the government to improve accessibility.
- A large percentage of the federal workforce chose not to identify their disability status.
- Two levels of disability, PWD and PWTD, are identified in the report.
Significant Findings of the Study
Findings of the EEOC study include the following:2
- A large percentage of the federal workforce did not identify their disability status.
- Although the overall participation rate of PWD in the federal workforce has increased since FY 2014, agencies need to work on improving retention and access to leadership positions.
- The government exceeded its 2% goal for hiring PWTD but fell short of its 12% goal for PWD.
- PWD and PWTD were less likely than persons with no disabilities to rise to a position of leadership with its greater authority and higher pay.
- Non-sexual harassment and reasonable accommodations are the most complaints.
- Disparities by disability status for non-voluntary separations were larger in FY 2018 than in the previous four years.
Purpose of the Study
The study examined data from 2014 through 2018 in order to establish a baseline for measuring the effects of an EEOC final rule, titled "Affirmative Action for Individuals with Disabilities in the Federal Government," issued Jan. 17, 2017.2
In addition to the baseline, the report helps identify current trends for workers with disabilities in the federal sector including participation rates of persons with disabilities (PWD) and persons with targeted disabilities (PWTD) and the ways federal agencies have improved accessibility for PWD.
EEOC Levels of Disability
The EEOC study identifies two levels of disability: persons with a disability (PWD) and persons with a targeted disability (PWTD). A PWD is someone who reports having:
A PWTD refers to someone who reports they have any of the following:
- “A physical or mental impairment that substantially limits one or more major life activities”
- “A record of such an impairment”
- “Regarded as having such an impairment”
- Developmental disabilities, for example, cerebral palsy or autism spectrum disorder
- Traumatic brain injuries
- Deafness or serious difficulty hearing
- Blindness or serious difficulty seeing even when wearing glasses
- Missing extremities (arm, leg, hand, and/or foot)
- Significant mobility impairments
- Partial or complete paralysis
- Epilepsy and other seizure disorders
- Intellectual disabilities
- Psychiatric disabilities
- Significant disfigurement
A large percentage of the federal workforce chose not to identify their disability status, according to the report.2
Participation by PWD and PWTD in the Federal Workforce
Just over 9.4% of federal employees reported themselves as PWD (which includes PWTD) in 2018. This represents an 8% increase from the 8.68% reported participation rate in 2014. The percentage of those who self-identified as PWTD was 1.69% in 2018, compared to 1.02% in 2014.
During this period, federal agencies were found to raise awareness of accessibility for persons with disabilities and improved technological resources to make workplaces more accessible. Promotion rates for PWD were found to be similar to what would be expected based on their participation rate.1
9.42% and 1.69%
Percentage of the federal workforce that self-reported as PWD and PWTD, respectively, in 2018.
Numbers were less encouraging among the ranks of federal sector leadership where persons with disabilities are still underrepresented. Among PWTD, only 10.7% are in leadership positions and just 13.59% of PWD have achieved that status. By comparison, 16.35% of persons without disabilities are in leadership positions.2
PWTD Face Additional Problems
As the data above shows, federal employees with the most severe disabilities represent a smaller percentage of the workforce and have a proportionally smaller leadership role. It may not be surprising, then, that PWTD employees were also found to leave federal employment at more than twice the rate of people without disabilities. As a matter of policy, the federal government has a special emphasis on recruiting, hiring, and retaining people with targeted disabilities.2
It's also worth noting that persons with disabilities (PWD) were 53% more likely to involuntarily leave than those without disabilities. In addition, PWD and PWTD were more likely to voluntarily leave federal employment than people without disabilities.
Harassment, Accommodation Complaints Increase
The report also found that physical disability-based complaints increased 22% over the five years covered by the EEOC study. Mental disability-based complaints increased 72%. This outpaced the overall increase in federal sector EEO complaints. The report concluded that the increase could be due to an increase in discrimination and an increased willingness of persons with disabilities to file an EEO complaint.2
The report concludes with this statement: "The Federal sector should continue to strive towards developing a workforce that broadly reflects the diversity of our society, one that is in inclusive of workers with disabilities. This will serve to enhance the capabilities of the Federal government, as well as to empower PWD with economic self-sufficiency, independence, and integration into society."
Emerging Technology: How It Could Lead To More Employment Discrimination
As our computer software and hardware constantly improve, employers find new ways to take advantage of these advancements. Instead of being relegated to increasing productivity, new technology, like artificial intelligence, is taking on additional roles in the workplace. Applications include monitoring employees and assisting in the hiring process.
But using new technology for decisions traditionally made by humans could have a few growing pains, including inadvertent discrimination. Luckily, workplace civil rights enforcement agencies like the U.S. Equal Employment Opportunity Commission (EEOC) and the Civil Rights Division at the U.S. Department of Justice (DOJ) are anticipating this potential problem and have taken steps to tackle it.
How Employers Are Using New Technology in the Workplace
There are two major areas in which employers are using technology in ways that could lead to illegal discrimination. First, it’s with monitoring employees’ productivity levels and measuring their performance. Second, it’s when making hiring decisions.
Using software, artificial intelligence and algorithms to increase the efficiency of the hiring process might be the single biggest example of how companies are trying to make the most of new technology. But in this quest to save time, money and effort, certain job applicants could find themselves at an unfair and illegal disadvantage.
How Advanced Technology Could Lead to Inadvertent Workplace Discrimination
In regards to employee monitoring (and ignoring the potential legal issues involved), there are situations where the goal of identifying who the most productive workers are could result in violations of the Americans with Disabilities Act of 1990 (ADA).
For instance, an employer might have software that monitors an employee’s keystrokes or completed computer tasks over a given time period. But what if an employee has an ADA-recognized disability that makes typing or using a traditional mouse cumbersome?
To deal with this challenge, they might have access to a reasonable accommodation, like voice recognition software or some other type of input device. Yet if the monitoring software doesn’t take these accommodations into account, the employee with a disability could be unfairly graded by the monitoring software. This flawed assessment might ignore the fact that the employee is perfectly capable of completing their job tasks with a reasonable accommodation. An employer aware of this scenario could avoid this situation by using a different way of testing or grading the employee’s productivity levels. But the trick is being aware that this type of scenario could arise.
As for technology leading to discrimination during the hiring process, there are many possible pitfalls for an unwary employer. Some examples include:
These seem innocuous, and for the most part, they are. So how could they lead to discrimination? In example #1, whoever develops the algorithms and software might unknowingly program the technology to give special preferences to gender-biased words. This might give resumes from a particular sex or gender an advantage in the selection process.
- Software and algorithms that scan resumes from applicants for specific keywords.
- Facial and voice-recognition technology that grades job applicants based on how they talk and their facial expressions.
- Asking potential employees to take a self-assessment test to determine their personality and if they’ll be a good fit for a particular position.
- Using chatbots or virtual assistants to ask job applicants basic questions about their qualifications.
- Requiring prospective hires to take a pre-employment test on a computer.
In example #2, the software and algorithms could place a special emphasis on candidates that speak a certain way or use certain words. But those with accents, a unique manner of speaking or disabilities that affect speech could be penalized by the technology. This could lead to unlawful discrimination based on someone’s race, color, national origin or disability.
For example #3, a candidate with severe depression could be disqualified from a position due to their “personality” even though their answers are a consequence of a mental impairment that’s recognized by the ADA.
For example #4, imagine a chatbot that asks job applicants yes or no questions about their job history. And one of the questions is if they were ever fired from a job “for cause.” An applicant wants to answer truthfully and errs on the side of caution by answering “yes.” Yet this answer automatically results in their disqualification from the position. But the chatbot didn’t allow the job applicant to explain that the reason for their termination was later found to be illegal because it was due to the job applicant’s age.
In the fifth example, the test itself may not be discriminatory. But if it’s given in a way that places certain applicants at a disadvantage because of a protected trait, it could be illegal.
A hypothetical situation might be an aptitude test that has to be taken on a computer in the employer’s office and measures the job candidate’s typing skills. But the job candidate is visually impaired. And while they can type on a regular keyboard, their typing skills are nowhere near as good as when using a braille keyboard.
What Can Employers Do to Avoid Technology Discrimination?
The biggest thing employers can do is become educated about the potential problems new technology can have. And that despite the best intentions, discrimination can still take place.
In the majority of situations, employers making use of technology aren’t trying to discriminate. But they might be ignorant of how the use of their technology results in the dismissal of promising applicants and successful employees because of protected characteristics.
To help increase awareness among employers, various government agencies have released legal and technical guidance. These are intended to advise employers on what they need to look out for when implementing new software, algorithms and artificial technology in the workplace.
Two recent releases have come from the EEOC and DOJ with The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees and Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring, respectively. These focus on disability discrimination, but are likely just the beginning.
The U.S. Department of Labor (DOL) will probably release its own legal guidance for employers. Then there’s probably going to be guidance handed down in regards to how an employer’s use of technology could lead to discrimination in violation of other federal laws, like Title VII of the Civil Rights Act of 1964 (Title VII).
New technology can help provide new ways for employers to get work done. But if they’re not careful, it could result in inadvertent discrimination of employees and job applicants. Federal agencies responsible for enforcing workplace civil rights laws are already taking steps to help employers avoid these mistakes.
Federal workforce participation rate of people with disabilities is increasing, EEOC report finds
- The federal workforce participation rate of people with disabilities has increased more than 8% since 2014, the U.S. Equal Employment Opportunity Commission found in a report it released Thursday. People with disabilities (PWD) in 2018 made up 9.42% of federal employees; in 2014, the participation rate was 8.68%. Roughly 5% of employees declined to identify their disability status.
- The report demonstrated several other positive trends. While employees with disabilities comprised 11.2% of all new hires in 2018, falling below the permanent hiring goal of 12%, employment of people with targeted disabilities (PWTD) — those associated with high unemployment, such as deafness, blindness, paralysis and developmental disabilities — exceeded the goal of 2% for that group, with 2.36% of new hires having targeted disabilities. In addition, the report found that PWD and PWTD “were promoted at a rate similar to what would be expected based on their participation rate.”
- The report also uncovered some areas the agency identified for improvement. For example, PWD and PWTD are less likely than people with no disabilities to be in leadership positions. They were also more likely to leave their roles, both voluntarily and involuntarily.
The EEOC’s report followed “Affirmative Action for Individuals With Disabilities in Federal Employment,” a regulation promulgated in 2017. The rule outlines the federal government’s obligations with regard to the Rehabilitation Act of 1973, which requires affirmative action in employment by the government and prohibits disability discrimination.
The report dug into a wide array of data, returning a number of findings. Among federal government workers, men are more likely to have disabilities (including targeted disabilities) than women, as are veterans. Within race and national origin groups, those of two or more races are most likely to have disabilities, followed by Black workers. Asian workers were least likely to have disabilities. Older workers are more likely to have disabilities than younger workers.
Those with disabilities reported less satisfaction with their workplace experience. Eight percent fewer PWD reported being satisfied with recognition for doing a good job, and they were 6.4% less likely to think their performance appraisals were fair reflections of their performance. They were also 8% less likely to agree promotions were based on merit.
The report also gathered data on complaints, finding discrimination based on physical disability made up nearly a third (28.2%) of formal EEO complaints from the federal sector in 2018. Complaints of discrimination based on mental disabilities made up about 15%, in comparison. The top complaints were harassment (nonsexual) and failure to provide reasonable accommodations.
In addition to analyzing the data, the EEOC report provided recommendations for federal employers to increase workforce representation of PWD. Among those, EEOC suggested federal agencies reassure employees of disclosure confidentiality to encourage more employees to disclose their status; specifically recruit and focus on retention of PWD in leadership positions; and increase focus on provision of reasonable accommodations. Streamlining the reasonable accommodation request process can help with accessibility, EEOC said.
EEOC RELEASES GUIDANCE ON ALGORITHMS, AI, AND DISABILITY DISCRIMINATION IN HIRING
The US Equal Employment Opportunity Commission (EEOC) released guidance on May 12 addressing the application of the Americans with Disabilities Act (ADA) to employer use of algorithms and artificial intelligence (AI) during the hiring process. Produced as part of the Artificial Intelligence and Algorithmic Fairness Initiative launched in October 2021, the guidance reflects the agency’s growing interest in employer use of AI, including machine learning, natural language processing, and other emerging technologies in employment decisions.
The EEOC’s AI initiative is a key component of the agency’s efforts to advance its systemic work, according to an April 2022 testimony Chair Charlotte Burrows gave to the House Education and Labor Subcommittee on Civil Rights and Human Services. The initiative’s goal is to educate applicants, employees, employers, and technology vendors about the legal requirements in this area and to ensure that new hiring tools do not perpetuate discrimination.
These documents are the first substantive output of the initiative. The guidance provides key insights into the EEOC’s thinking on these tools and potential enforcement priorities in the area moving forward.
DEFINING AI AND ALGORITHMIC DECISION TOOLS
Definitions are crucial in this area due to the growth of the various technologies and their increasing use at different stages in the employment process. The EEOC’s guidance provides extended definitions of three key terms—software, algorithms, and artificial intelligence—along with analysis on how they can be used in the workplace. While this document focuses on the ADA, it is expected that the EEOC will apply these definitions when analyzing the impact of the tools in other areas of employment discrimination, such as race or gender bias.
The definitions employed by the EEOC are quite broad. They define “software” as information technology programs that tell computers how to perform a given task or function. Examples of “software” used in hiring include resume-screening software, hiring software, workflow and analytics software, video interviewing software, and chatbot software.
“Algorithms” encompass any set of instructions followed by a computer to accomplish an identified end. This can include any formula used by employers for ranking, evaluating, rating, or making other decisions about job applicants and employees.
“Artificial intelligence” refers to a “machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments.” This covers machine learning, computer vision, natural language processing and understanding, intelligent decision support systems, and other autonomous systems used to make employment decisions or set out the criteria for a human to make employment decisions.
The guidance notes that employers may use tools that include any combination of these three general terms. For instance, an employer may utilize resume screening software that relies on an algorithm created by human design or an algorithm that is supplemented or refined by AI analysis of data.
POTENTIAL ADA VIOLATIONS FROM EMPLOYER USE OF AI AND ALGORITHMIC TOOLS
The guidance discusses three areas where an employer’s use of algorithmic or other technology decision making tools could violate the ADA:
Tools That Unlawfully Screen Out Persons With Disabilities
- Use of tools that unlawfully screen out applicants or employees on the basis of disability
- Failure to provide reasonable accommodation in relation to the tools
- Use of tools that violate ADA restrictions on disability-related inquiries and medical examinations
The guidance explains that a tool might “screen out” an individual on the basis of disability if the individual’s disability prevents the individual from meeting selection criteria implemented by the tool or results in a negative rating from the tool based on those criteria. If the individual loses a job opportunity as a result, a violation of the ADA may occur. Examples include screens that automatically eliminate applicants with significant gaps in their employment history (which may be the result of a disability) or measure and make assessments on physical or mental traits, such as speech patterns or the ability to solve certain games, which may be impacted by a disability.
The guidance notes, importantly, that employers may not rely on a vendor’s assessment that a tool is “bias free” for validation purposes. Such assessments may only focus on other protected characteristics, such as race or gender, and not properly evaluate impact on the basis of disability. Further, unlike other protected characteristics, each disability is unique in terms of the limitations it imposes. A general assessment of a tool is unlikely to cover all the potential ways a disability may interact with that tool. Finally, a vendor assessment may be invalid or poorly designed. As the ultimate decisionmaker, the employer is liable for the results produced by the tool and has the responsibility for ensuring legal compliance.
Duty to Provide Reasonable Accommodation
The guidance reiterates that employers must consider reasonable accommodations for applicants or employees who require them to be rated fairly or accurately by an evaluation tool. That can include accessibility accommodations for persons who have difficulty taking tests or using tools due to dexterity limitations or who require adaptive technologies, such as screen-readers or closed captioning, to effectively apply. This obligation applies to an employer even if it has outsourced the evaluation or operation of the tool to a third party or vendor.
The guidance further explains that the ADA’s reasonable accommodation requirement may necessitate waiving the use of these tools in certain situations. AI and algorithmic tools are designed to measure an individual’s suitability for a particular position. Employers will need to consider requests for accommodation, including waiver, from applicants who are unable to meet the criteria used by a particular tool to measure fit but are otherwise able to show that they can perform essential job functions. This is the case even when the tools are validated for certain traits. As discussed above, the EEOC believes that the unique nature of each disability makes it possible for an individual to show that a generally validated screen still unlawfully screens that individual out on the basis of the individual’s particular limitations.
Disability-Related Inquiries and Medical Exams
The guidance also reaffirms that AI or algorithmic tools may not involve unlawful disability-related inquiries or medical examinations. The ADA bars employers from making disability-related inquiries or requiring medical examinations of applicants prior to a job offer. Once an offer is made, the employer may only make such inquiries or require such exams if they are “job-related and consistent with business necessity.” The guidance reminds employers that an assessment or algorithmic decision making tool that explicitly requests medical information from applicants or can be used to identify an applicant’s medical condition could violate the ADA. Tools that assess broad personal traits (such as personality tests), however, will usually not violate this prohibition if they are not designed to reveal a specific diagnosis or condition.
‘PROMISING PRACTICES’ TO PREVENT DISCRIMINATION
The guidance recommends several practices that employers may use to reduce the chances of an AI or algorithmic tool violating the ADA. These include:
These “promising practices” reinforce that the key to ADA compliance in this area will be gathering sufficient information to identify potential areas of bias and providing applicants with the necessary resources to request alternative forms of evaluation if they believe a disability may prevent fair or accurate evaluation.
- Continuously evaluating whether a tool may screen out persons with disabilities
- Ensuring the tools are accessible for persons with visual, hearing, speech, or dexterity impairments
- Providing robust explanations to applicants or employees regarding the traits or characteristics measured by a particular tool, the methods it uses to measure those traits or characteristics, and the disabilities, if any, that might potentially lower an assessment or screen out an individual
- Clearly advertising the availability of reasonable accommodation, including alternative formats, waivers, and tests, for persons with disabilities as well as providing clear instructions for requesting such accommodations
Unfortunately, however, the EEOC does not provide much guidance regarding how employers can assess these tools for potential disability bias.
The EEOC is focused on the use of AI in employment, particularly in hiring, and additional guidance on this topic is expected as a result of its AI initiative. Increased EEOC interest in claims of discrimination is also anticipated based on the use of these tools and renewed systemic focus on this area.
The EEOC is just one of several regulatory bodies interested in the application of these tools. California’s Fair Employment and Housing Council released draft regulations concerning employer use of “automated-decision systems” in March 2022. In November 2021, New York City passed a law requiring annual “bias audits” for “automated-decision systems” used in hiring and several other jurisdictions are actively considered measures on this topic.
Employers will need to monitor developments in this area closely given this increased regulatory activity. They should also closely evaluate the ways that existing or proposed tools may create the risk of an ADA violation based on the EEOC’s guidance. This will only grow in importance as employers increase their reliance on these methods to find and select the best applicants for positions in a tight labor market.
EEOC Report Analyzes Situation of Workers with Disabilities in the Federal Workforce
WASHINGTON – In a newly issued report, the U.S. Equal Employment Opportunity Commission (EEOC) shows that opportunities for persons with disabilities in the federal workforce are improving, but that further progress is needed on retention and representation in leadership positions.
The study examined federal workers with disabilities’ demographics, their hiring, advancement, and separation from employment at federal agencies, discrimination complaints based on disability, and ways that federal agencies are improving accessibility for persons with disabilities.
Representing 9.4% of federal employees, the participation by people with disabilities in the federal workforce is increasing. In FY 2014, persons with disabilities represented 8.68% of federal workers. This increased by more than 8% to 9.42% in 2018. Accordingly, federal agencies are raising awareness of accessibility for persons with disabilities and are improving their technological resources to make their workplaces more accessible to people with disabilities.
The study also found that persons with disabilities are promoted at a rate similar to what would be expected based on their governmentwide participation rate.
“The EEOC is delighted to see that our support of people with disabilities has borne fruit in so many ways,” said Carlton Hadden, director of the EEOC’s Office of Federal Operations. “Clearly, though, more progress is needed. The EEOC will continue to work to advance the opportunities and well-being for this still too underutilized and underappreciated segment of our population.”
The report other findings include the fact that persons with disabilities are still underrepresented in federal sector leadership. Among persons with targeted disabilities, 10.7% are in leadership positions and 89.3% are in non-leadership positions. Among persons without disabilities, 16.4% are in leadership positions, and 85.6% are in non-leadership positions.
Targeted disabilities are the most severe ones, including blindness, deafness, partial and full paralysis, missing extremities, dwarfism, epilepsy, intellectual disabilities, and psychiatric disabilities. Individuals with these disabilities typically have the greatest difficulty finding employment. As a matter of policy, the federal government has a special emphasis on recruiting, hiring, and retaining people with targeted disabilities.
Further, the report illustrates that people with targeted disabilities involuntarily left federal employers at more than twice the rate of people without disabilities, and people with any disability were 53% more likely to involuntarily leave than persons without disabilities. Similarly, persons with disabilities and targeted disabilities were more likely to voluntarily leave federal employers than persons without disabilities.
“There’s something wrong with this picture when so many more people with disabilities leave the government than those without,” Hadden said. “Our government needs to be the best workplace it can be for everyone. Federal managers and policymakers need to take a good look at this situation and figure out ways to improve this picture.”
The report also reveals that over a five-year period, federal sector physical disability-based complaints increased by 22% and mental disability-based complaints increased by 72%, outpacing the overall increase in federal sector EEO complaints. This may be due to increased discrimination against persons with disabilities or increased comfort with filing an EEO complaint among persons with disabilities, the report said.
By using 2018 data, this report provides a baseline to measure the impact of EEOC’s final rule, “Affirmative Action for Individuals With Disabilities in the Federal Government,” which clarified that federal employers must take proactive steps to improve opportunities for persons with disabilities.
For more information on disability discrimination, please visit https://www.eeoc.gov/disability-discrimination.
U.S. Government Warns Against Disability Discrimination
Use of Artificial Intelligence Can Violate the Americans with Disabilities Act
The U.S. Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) released guidance May 12, 2022, warning employers that the use of artificial intelligence (AI) technology to screen job candidates or monitor productivity can discriminate against people with disabilities, resulting in violation of the Americans with Disabilities Act.1
AI tools can be used to scan resumes, measure the speed of computer keystrokes, facilitate online testing, and assist with video interviews to measure speech patterns or facial expressions. All of these can be used to discriminate in violation of the ADA. In separate guidance, both the EEOC and DOJ explain how an employer’s use of AI and other technology can discriminate against disabled individuals within the meaning of the ADA and provide employers with examples of practices they can use when screening potential employees and assessing workers.23
- Recent guidance from the EEOC and DOJ warns employers about the danger of using AI tools in hiring and employee evaluation.
- The guidance points to the ways AI and other tools can discriminate in violation of the Americans with Disabilities Act (ADA).
- The use of AI to scan resumes, measure keystroke speed, facilitate online testing, measure speech patterns, and facial expressions may result in discrimination within the meaning of the ADA.
- The EEOC and DOJ provide guidance for employers to help them avoid discrimination issues.
Guidance from the EEOC
EEOC guidance titled, “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” focuses on helping employers avoid discriminating against job seekers and employees with disabilities. The document lists things employers should take into consideration to ensure ADA discrimination does not occur.3
“New technologies should not become new ways to discriminate," said EEOC Chair Charlotte A. Burrows in a statement. "If employers are aware of the ways AI and other technologies can discriminate against persons with disabilities, they can take steps to prevent it."
- Employers should provide reasonable accommodations when using algorithmic decision-making tools
- Employ safeguards to prevent workers with disabilities from being “screened out” from consideration for a job or promotion even if they can do the job with or without reasonable accommodation
- Avoid the use of AI or algorithms that results in applicants or employees having to provide information about disabilities or medical conditions which may result in prohibited disability-related inquiries or medical exams
DOJ Guidance for Employers and Employees
The DOJ’s guidance document, “Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring,” provides an overview of employee rights and employer responsibilities. The document:
“Algorithmic tools should not stand as a barrier for people with disabilities seeking access to jobs,” said Assistant Attorney General Kristen Clarke for the Justice Department’s Civil Rights Division. “This guidance will help the public understand how an employer’s use of such tools may violate the Americans with Disabilities Act, so that people with disabilities know their rights and employers can take action to avoid discrimination.”
- Provides examples of various AI and technological tools employers utilize for screening and assessment
- Clarifies that employers must consider how their tools could impact different disabilities;
- explains employer obligations under the ADA when using algorithmic decision-making tools, including when an employer must provide a reasonable accommodation
- Provides information for employees on action they can take if they believe they have experienced discrimination.2
Workplace Implications for AI
This latest warning from DOJ and EEOC signals the intent of the federal government to make employers and employees alike aware of the ways AI and other technological advancements can lead to discrimination in the workplace, especially in hiring and employee evaluation.
As businesses grow and seek out highly qualified employees in an increasingly success-oriented workforce, the employment of AI will likely continue to expand. This makes it important for all involved to guard against and protect themselves from AI discrimination. Ultimately, the responsibility falls on employers to carefully audit AI tools and apprise themselves of new developments from the government as regulation becomes more prevalent.
EEOC, DOJ Warn Companies: Do Not Use AI to Discriminate
Employers must review their artificial intelligence tools to ensure they are not violating the Americans with Disabilities Act (ADA), according to new guidance released by the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ).
Earlier this month, the EEOC and DOJ each released a technical assistance document warning of the possibility of disability bias when companies use software tools like AI to make employment decisions.
"New technologies should not become new ways to discriminate," EEOC Chair Charlotte Burrows said in a press release. "If employers are aware of the ways AI and other technologies can discriminate against persons with disabilities, they can take steps to prevent it."
The EEOC's guidance, "The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees," focused on preventing bias against applicants and employees with disabilities.
The document outlines issues that employers should consider to ensure their software tools do not create disadvantages for workers or applicants with disabilities. It focuses on three primary concerns under the ADA:
"As a nation, we can come together to create workplaces where all employees are treated fairly," Burrows added. "This new technical assistance document will help ensure that persons with disabilities are included in the employment opportunities of the future."
- Employers should have a process in place to provide reasonable accommodations when using algorithmic decision-making tools.
- Without proper safeguards, workers with disabilities may be screened out from consideration in a job or promotion even if they can do the job with or without a reasonable accommodation.
- If the use of AI or algorithms results in applicants or employees having to provide information about disabilities or medical conditions, it may result in prohibited disability-related inquiries or medical exams.
The DOJ's guidance document, "Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring," explains how algorithms and AI can result in disability discrimination in the hiring process. The document:
"This guidance will help the public understand how an employer's use of such tools may violate the Americans with Disabilities Act, so that people with disabilities know their rights and employers can take action to avoid discrimination," Kristen Clarke, assistant attorney general for the DOJ's civil rights division, said in a press release.
- Offers examples of the types of technological tools that employers are using.
- Clarifies that employers must consider how their tools could impact different disabilities.
- Explains employers' obligations under the ADA when using algorithmic decision-making tools, including when an employer must provide a reasonable accommodation.
- Provides information for employees on what to do if they believe they have experienced discrimination.
In October 2021, Burrows announced that the EEOC was launching an initiative to ensure AI and other emerging tools used in hiring and other employment decisions comply with federal civil rights laws that the agency enforces.
AI Can Also Discriminate Based on Age, Sex and Race
Lauren Daming, an attorney with Greenfelder Law Firm in St. Louis, said disability bias is just one potential concern associated with companies using AI. These technologies can also discriminate based on race and sex.
"There's a lot of evidence that facial recognition technologies often are less reliable when it comes to evaluating or validating women or people of color," Daming noted.
AI technologies can also discriminate against age: In May, the EEOC sued three integrated companies providing English-language tutoring services to students in China under the "iTutorGroup" brand alleging that they programmed their online software to automatically reject more than 200 older applicants.
In 2020, iTutorGroup programmed their application software to automatically reject female applicants age 55 or older and male applicants age 60 or older, the EEOC claims. This conduct violates the Age Discrimination in Employment Act, which protects applicants and employees from age bias.
What Companies That Use AI Should Know
Craig Leen, an attorney at law firm K&L Gates in Washington, D.C., said AI can be an effective tool. It can help eliminate unconscious bias by human decision-makers, leading to an increase in equal employment opportunity when done correctly.
This can be accomplished through self-auditing, checking on a regular basis for bias or adverse impact, and by ensuring that there is an effective way for candidates with disabilities to request reasonable accommodations and be considered based on their skills and qualifications.
"AI can also be very beneficial because it can eliminate the possibility of implicit bias," Leen said. "There is unconscious bias in human decision-making, so AI can be a tool to help HR managers make good employment decisions."
To alleviate potential hiring concerns associated with AI, employers should consider why they're using AI in the first place, Daming said.
"Whatever you're assessing needs to be aligned with the requirements of the position and needs to be measured by the technology—not just inferred," she explained. "Before adopting any of these tools, the company needs to understand how they work, what they're measuring, and how they may affect different employees."
Daming said employers should also be transparent with applicants and employees about the use of automated technologies and how they work. This gives applicants notice that they may need to request an accommodation.
"The guidance does not go so far as requiring notice and consent, which is more of a privacy principal than a discrimination concept," Daming explained. "But that just shines a light on how these technologies involve many unique concerns springing from individual privacy rights and protected characteristics."
As Anxiety-Related Discrimination Complaints Rise, Here’s How To Protect Yourself
Having a mental health issue interfere with your personal life is hard enough. But having it affect your working life can be even more difficult. For one thing, there’s dealing with your mental health challenge surrounded by people who may not know about it or be sympathetic to what you’re going through. Then there’s the potential of being treated differently after your colleagues learn about your mental health struggles. Finally, there’s the possibility that you could lose your job.
Yes, getting fired because of a mental health issue could be illegal. But that doesn’t mean the threat of a lawsuit will always stop your boss from terminating you or make it any easier to find a new job after you lose your current one.
Workplace discrimination based on a psychological disability in violation of the Americans with Disabilities Act of 1990 (ADA) is nothing new. But there’s been a steady increase in the number of discrimination complaints based on anxiety disorders that have been filed with the U.S. Equal Employment Opportunity Commission (EEOC).
What Is an Anxiety Disorder?
Feeling some anxiety is a part of everyday life for most people. But these anxious feelings are often temporary and the result of an unusual or significant life event. However, there could be a problem when these feelings of anxiousness are severe, don’t go away or are disproportionate to their cause. An anxiety order may exist when the anxiety begins to negatively affect someone’s daily life. Some of the most common types of anxiety disorders are:
Common forms of treatment include cognitive behavioral therapy and medication. But these can be supplemented with other strategies, like support groups and stress management.
- Generalized anxiety disorder
- Separation anxiety disorder
- Social anxiety disorder
- Panic disorder
The Number of Workplace Discrimination Complaints Continue to Rise
During the 2011 fiscal year, the EEOC received 1,362 ADA-based complaints (charges) where at least one of the impairments included an anxiety disorder. In 2021, the number of complaints including an anxiety disorder rose to 2,639.
There are a variety of reasons that could explain why these numbers have gone up. The coronavirus is a major factor, but this upward trend began before the pandemic hit. There are other potential theories to explain the increase in the reporting of anxiety-based discrimination. Some of these include:
The possible increase in the number of people dealing with an anxiety disorder.
With more employees complaining about anxiety-based discrimination at work, there’s more employers can do to make their work environments more accommodating to their employees dealing with anxiety.
How Employers Can Handle Employees with Disabilities
There are two approaches employers can take when it comes to accommodating employees dealing with anxiety.
First, an employer can create a work environment that goes above and beyond what’s required by the law. This could include treating an employee with a disability no different than their coworkers, even though the employee’s disability isn’t legally recognized. Or it might constitute providing workplace accommodations that go further than what’s legally mandated.
Second, there’s doing the minimum. In other words, the employer does just enough to avoid legal liability. When it comes to what the law requires, one major legal authority is the ADA. For certain individuals, their anxiety disorder could qualify for special protections and rights under the ADA.
For a disability to be recognized by the ADA, it must result in a mental or physical impairment that substantially impairs a major life activity. Deciding whether the ADA recognizes a disability does not solely depend on the existence of a diagnosis. Instead, it primarily depends on how that disability affects a particular person.
Another key point for employers to remember is that the ADA prohibits discrimination because of an employee’s history of having a disability. So disability discrimination can exist even if the employee no longer has a disability. An employer is also in violation of the ADA if the discrimination is based only on the belief that the employee has a disability.
In addition to prohibiting employers from discriminating against employees because of their disability, the ADA also requires covered employers to provide one or more reasonable accommodations to their employees who have a recognized disability. But this obligation only exists if it doesn’t place an undue hardship on the employer and the employee can otherwise perform their essential job duties.
Ways Employers Can Help Employees with Anxiety Disorders
In addition to providing a reasonable accommodation to help an employee deal with their anxiety, employers can make other changes to the workplace, like:
- Offering mental wellness services.
- Reminding employees of the mental health resources available from the employer.
- Creating policies that encourage employees to talk about their mental health struggles. Examples include open door and confidentiality policies.
- Checking in with workers often to see how things are going.
- Educating employees about the prevalence of emotional and psychological challenges and ways they can get help if they’re dealing with one.
- Fostering a company culture that recognizes the needs of employees who are dealing with not just anxiety disorders, but any disability.
- Offering flexible work leave options that make it easier for employees to get the help they need.
- Encouraging managers to serve as examples of model behavior. If a manager isn’t afraid to share the fact that they’re seeing a therapist to deal with a mental health issue, it might make it easier for their subordinates to open up about what they’re going through and get help for it.
Workplace discrimination based on an anxiety disorder is on the rise. Whatever the cause might be, there are several ways employers can make it easier for their employees to feel supported, understood and secure enough at work to get help.
Research: The Real-Time Impact of Microaggressions
While many leaders have ramped up efforts to make their organizations equitable for members of marginalized groups, evidence shows that Black employees continue to experience disrespect in the workplace.
Just 3% of Black professionals report feeling ready to return to in-person work as compared to 21% of their white peers. One reason is that remote work has buffered them from microaggressions: intentional or unintentional behaviors that communicate negative racial slights and insults toward people of color.
While many organizations have tried to address workplace microaggressions in the wake of the heightened visibility of racial inequity, many efforts have missed the mark. For example, Black women continue to experience the highest rates of disrespect, such as demeaning remarks. This is despite the fact that 80% of white men and women identify as allies to people of color at work and would likely be surprised to learn that they may be engaging in some of these negative behaviors.
There is a gap between how folks intend to treat people of color and what is actually happening. In order to make more progress toward racial equity, leaders need to understand how these “harmless” comments affect Black employees’ workplace behavior and emotions in real time. Most studies of microaggressions rely on accounts of past events, which may be affected by recall bias: the tendency for people to forget or omit details of previous events. Experiments avoid that issue by collecting how people respond to events in the moment.
Opening the Black Box
As a case in point, Edith Cooper, a successful board member and CEO, was told by a white male colleague, “There’s no chance now [for a board seat] for the next 20 years. All they want are women. Edith, you must be in great demand — as a Black woman.”
These types of slights are known as “competency microaggressions.” They’re commonly directed at Black and female employees and reveal low expectations of their abilities, beliefs that they’re “affirmative action” hires, or surprise when they demonstrate competency. There is ample research on Black employees’ experiences with racial microaggressions like these that show their harm, but these studies rely on accounts of past experiences. In my new research, I set out to discover the actual impact — in the moment — of competency microaggressions on Black workers.
In order to gather empirical data on what many call the “black box,” or the hidden mechanisms of inequality, I conducted an experiment with 300 Black participants to test how experiencing a competency microaggression affected them. Participants were recruited from online crowdsourcing survey platform Prolific. Each completed a task with a partner whom they believed were real but was actually computer simulated. Before beginning the task, participants were instructed that some teams would be assigned a leader and that teams with no leader would have equal influence in decision making.
Some participants received this message from their partner: “They’ll probably pick you as the leader cause you’re Black lol.” This type of comment is a common competency microaggression that Black employees experience, where success is attributed solely to their race in a perceived act of affirmative action. Such statements are often worded as a joke in order to reduce the chance that they’ll be perceived as hostile or threatening.
After assigning all teams to have equal influence in decision making, I then evaluated participants’ emotional reactions, captured what they said in response, and measured how the comment affected how they interacted with their partner.*
The Real-Time Impact of Microaggressions
The results demonstrate that the ways Black workers respond to competency microaggressions are complex and not only hurt the recipient, but also how they interact in teams.
Immediately after experiencing the microaggression, participants rated how angry, shocked, and ashamed they felt. Participants who experienced the microaggression reported significantly greater negative emotions than those in the control group (i.e., those who did not receive the message from their partner).
However, their responses to their partner didn’t necessarily reflect their negative emotions. Instead, they were more likely to reply to their partners with comments that were conflict avoidant. This is consistent with the finding that most Black professionals want to avoid being associated with negative stereotypes of the “angry Black person” or being seen interpersonally as difficult to work with. Commonly, they utilized humor. As one participant wrote: “Lol, we will see.” The minority of people who didn’t use conflict-avoidant language either used probing techniques by asking their partner to clarify the statement or directly expressed that they didn’t think the comment was funny. It’s interesting, but not surprising, that only two participants mentioned to their partner that the comment was racist, given Black people’s preference for showing emotional restraint in response to uncomfortable, racialized interactions.
All of this points to the tremendous emotional labor that Black professionals perform on a daily basis to manage what others perceive as harmless comments. While performing emotional labor in response to racialized interactions is not new, these findings show what that looks like in real time. When race is brought up in a professional setting in inappropriate ways, the pressure is often on Black people to quickly find a way to ease the uncomfortable interaction for themselves and the perpetrator.
The Cost to Teams
My study also revealed that competency microaggressions can lead to less-effective team interactions. Healthy deference plays an important role in teams because it fosters group cooperation: When one person is seen as the legitimate leader, the others go along in order to be seen as reasonable and contribute to the group’s collective tasks. Deferring to someone else’s idea demonstrates that you believe that their contributions are valuable, but it also comes at a personal cost because your ideas are not chosen. Further, when race or gender consistently drives who gets shown more deference, teams can suffer. For example, when male-dominated cultures normalize women deferring to men, teams not only miss out on women’s contributions, but they end up overlooking women for promotions.
As it turns out, microaggressions seriously affect deference behavior. Participants experiencing the microaggression deferred less to their team member because of how negatively they felt toward them. In other words, the negative emotion they felt limited their ability to use a more objective rationale for decision making. This can have a serious impact on how teams function and how those who experience microaggressions are evaluated. However, deferring more is not a better solution because it leaves racially based behavior unchallenged and results in them not being able to gain influence. Thus, there is a double bind for Black employees where the way they respond to microaggressions has the potential to backfire on them no matter how they respond.
At the end of the experiment, participants had the opportunity to share their thoughts about their partner with me. I found that only 29% of those who experienced the competency microaggression actually reported it. While we know that microaggressions are underreported, this number is especially surprising given the context. Participants in my study didn’t face the same potential backlash or loss to their employment for reporting that workers in real-world organizations do. So, the question becomes: How much lower can we expect this number to be in a real organization?
While many leaders have ramped up efforts to make their organizations equitable for members of marginalized groups, evidence shows that Black employees continue to experience disrespect in the workplace. Since Black professionals face a bind in dealing with racialized comments, organizations need to take responsibility for preventing microaggressions and relieving their Black employees of the emotional labor that comes with them.
How to respond to a request for reasonable accommodation
The California Fair Employment and Housing Act (FEHA) requires employers of five or more employees to provide reasonable accommodation for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause an undue hardship.
Common forms of reasonable accommodations include, but aren’t limited to relocating the work area, modifying existing duties, changing the employee’s schedule, providing mechanical or electrical aids and granting a leave of absence.
“In California, the legislature has actually delineated many types of accommodations that could be reasonable in any specific context,” Navid Kanani, trial lawyer and employment law advocate at Los Angeles-based JS Abrams Law, told HRD. “The good news is there’s a framework of guidance for employers. The bad news is a lot of HR leaders or management don’t always know those things and end up not getting it right, which gives rise to an employee being in an uncompromising situation where they want to work there, but aren’t being given the tools to best do that.”
Kanani has extensive litigation experience, starting from his admittance into the California State Bar. He has worked in top-rated law firms since becoming an attorney and handles all employment litigation matters, including wrongful termination and wage and hour claims. Additionally, he’s well versed in personal injury, estate planning and wills and trusts related matters. He has litigated and tried a vast array of cases and has represented hundreds of clients in almost every county in California.
Once an employee initiates the conversation either in the form of a doctor’s note or just as a personal request, employers have to do their best to provide a reasonable accommodation or make a strong case as to why they can’t.
“An employer is required to take every personal request, but it creates financial hardship by then granting every request,” Kanani says. “A lot of employees have chronic disabilities or ongoing health issues that don’t always require them to see a doctor. But if a doctor’s note exists, it definitely gives them more strength to the fact that this is a legitimate disability requiring the conversation of accommodation.”
Disability discrimination claims have been on the rise in recent years, and the pandemic exacerbated the trend. From April 2020 through December 2021, the U.S. Equal Employment Opportunity Commission (EEOC) has received roughly 6,225 COVID-related charges of discrimination under federal civil rights laws, the latest agency data show. In addition, the EEOC 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.
“If an employee’s disability is the substantial and motivating factor for their employer taking some adverse action, such as termination, then you can prevail on that claim,” Kanani says. “The problem is how do you prove the employer’s intent was substantially based on the employee’s disability. It’s a very hard claim to prove, which is why the claim that follows is the employer failed to provide reasonable accommodation. Those claims don’t require getting into intent.”
The best way companies can protect themselves, Kanani says, is to document everything as soon as a request for reasonable accommodation has been received. “If there was an accommodation meeting, document whatever was discussed so the employee can’t say ‘they never talked to me about my disability.’ As a plaintiff’s lawyer, you love it because that’s a clear-cut violation of this rule that says you have to dialogue,” Kanani says.
The Future Of Diversity And Inclusion In Corporate America
Today, diversity and inclusion (D&I) programs are widespread in corporate America, but there’s a problem: They’re often ineffective at actually creating better environments for employees. These programs allow companies to check the D&I box, but they fail at their most basic objective of changing people’s behaviors to be more inclusive.
Even large companies with plenty of resources at their disposal struggle to successfully create discrimination-free, inclusive workplaces. Search for stories of corporate discrimination cases and you’ll find hundreds of recent results. Why is it so hard to implement effective D&I training? More importantly, what needs to change to create more inclusive workplaces?
To create a future with effective D&I training, we need to rethink and rebuild programs from the ground up, starting with the motivations behind them. The cold, calculated truth is that many D&I programs aren’t implemented with employees’ best interests in mind—they’re made to avoid lawsuits. Until that motivation changes and we as leaders focus on real improvements, we’ll continue to enable toxic, discriminatory behavior in the workplace.
Redefining The Goal Of D&I Training
You might be wondering, “What’s the problem with companies wanting to protect themselves from lawsuits?” Certainly, lawsuits are an important concern from a financial perspective. But several problems arise when litigation is the only focus of a D&I program. First, it means the training centers on the company’s interests and perspective, not the employees who might be experiencing discrimination and their experiences. Second, lawsuit-mitigation-based training is all about what not to do, not how to change minds and behaviors.
The resulting approach tends to be too tactical and focused to be effective. For example, the training often reads like a laundry list of “how to not discriminate against minority groups.” These programs tell the listener how to treat women, how to act around a person of color, how to address unconscious biases and so on. The end result is overly prescriptive training that doesn’t eliminate discrimination and exclusion. Ultimately, that’s unhelpful to both the company and employees.
What if, instead, the mindset behind D&I training was centered on creating a better workplace for everyone?
If we guide people in building empathy toward others who are not like them in some way, we can address the cause of discriminatory behavior at its root. This requires taking people on a journey of self-awareness to uncover and dismantle biases, not simply giving them a list of phrases and actions to avoid.
Current Messaging Doesn’t Resonate With Audiences
Another problem with D&I training as it exists today is that its messaging doesn’t resonate in a meaningful way with the people who need to hear it. Consider that most people’s reaction upon learning D&I guidelines is to think: “Why do I need this training? I’m not racist. I’m not sexist.”
These thoughts feel like accusations. The person hearing them is usually put on the defensive from the start, and they’ll deny having ever acted with bias or prejudice. From this closed mindset, learning becomes extremely difficult. In other words, we can’t teach a person how to not be racist when they believe they haven’t been—the message simply won’t sink in.
In this situation, people may follow the list of guidelines to avoid a lawsuit, but their underlying biases will still be in place. They may still discriminate and exclude others without even realizing it. When full inclusion and a safe, supportive workplace for all is the goal, getting lukewarm results like this is not enough. We as leaders must do more to create environments that serve and empower everybody.
Addressing Bad Behavior Across The Board
If lessons aren’t taken to heart, how can we get better results from our D&I programs?
One approach is to address bad behavior across the board. In other words, rather than focusing solely on discrimination, we might get better results from talking about self-awareness and triggers for poor behavior in general.
Say a white, male executive has a tendency to yell at his colleagues when he’s stressed. If he yells at another executive who is a person of color, he might be sent to a mandatory D&I class. But yelling is a toxic behavior, and we should work to discourage that behavior altogether—regardless of whom it’s directed at or coming from. That way, we create a better workplace for all.
To build the necessary empathy to eliminate bad behaviors, we need leaders to engage in genuine self-reflection. They must ask themselves, “How do I behave in times of stress? How do I deal with conflict and disagreement? How can I respond in a more productive way?”
By teaching people to behave with more kindness, empathy and respect for each other, no matter who they are, we can reach a real place of commonality without division.
Taking A Broader Approach To Inclusion
The good news about D&I training is that for many companies, it is still a new area of focus. That means there’s room to improve and fine-tune the process. The most impactful change we can make right now is to shift the emphasis from what people shouldn’t do around certain groups to what they should do around everyone.
When we approach workplace misbehavior in this broad way, we don’t polarize people. Real inclusion happens when we create an environment that respects and values humanity. Inclusion becomes a natural side effect of empathy, empowerment, vulnerability, trust and forgiveness.
By starting with these values and positive behaviors as a way to holistically eliminate discrimination, we can achieve real change and a better workplace for all.