August Diversity, Equity, And Inclusion Update
AUGUST DIVERSITY, EQUITY, AND INCLUSION UPDATE
Aug 3rd, 2022
Matt Glowacki, Diversity Equity & Inclusion Chair
Jefferson County HRMA & WI SHRM
Proclamation on the Anniversary Of The Americans With Disabilities Act
On July 26, 1990, with the signing into law of the Americans with Disabilities Act (ADA), our Nation created the world’s first comprehensive declaration of equality for people with disabilities. Since that time, this landmark legislation has been a driving force in moving America closer to the promise of equal opportunity, full participation, independent living, and economic self-sufficiency for the 61 million individuals with disabilities in our country. The ADA prohibits disability discrimination by State and local governments; provides standards for access to places of public accommodation; protects people with disabilities from discrimination in the workplace; and ensures equal access to health care, social services, transportation, and telecommunications. But even more than that, it enshrines the idea — central to the spirit of our Nation — that all of us are deserving of equal dignity, respect, and opportunity.
I was enormously proud to co-sponsor the ADA when I served in the United States Senate, and over the past 32 years, I have seen firsthand how it has improved the lives of countless Americans. Because of the ADA, generations of people with disabilities have grown up with the assurance that they are accorded the same rights and chances as their non-disabled peers — and our communities, our economy, and our country are all stronger as a result.
Despite the progress we have made through the years, our work is far from over. Many individuals still face barriers to inclusion and equitable access in our society. That is why advancing equity and equal opportunity for people with disabilities has been a priority of mine since taking office. My Administration has made sure that the Department of Justice has the resources it needs to vigorously enforce the Supreme Court’s decision in Olmstead v. L.C. We are working to expand access to the integrated, long-term services and supports that make it possible for disabled individuals to live and thrive in their communities, including significant funding from the Bipartisan Infrastructure Law to improve accessibility for people with disabilities. We are connecting disabled Americans to affordable accessible housing. My Administration is also working to expand opportunities for employment for people with disabilities and providing resources so that employers can make their workplaces more inclusive.
I also remain committed to ensuring that all children and educators have the resources they need to thrive in the classroom. That is why the American Rescue Plan provided $3 billion for disabled students to receive equitable, high-quality, and inclusive services. My Administration has also developed guidance to help children with disabilities who were disproportionately impacted by remote learning return to school safely.
As my Administration continues its work to address the COVID-19 pandemic, we recognize the long-standing health disparities and systemic discrimination faced by the disabled community. The pandemic has had an especially significant impact on the lives and independence of Americans with disabilities and has also been the cause of disability for many individuals.
As we celebrate the legacy of the ADA, let us take this opportunity to reflect on the progress we have made and renew our commitment to achieving the ADA’s full promise of advancing disability equity, dignity, access, and inclusion.
NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim July 26, 2022, the Anniversary of the Americans with Disabilities Act. I encourage Americans to celebrate the 32nd year of this defining moment in Civil Rights law and the essential contributions of individuals with disabilities for our Nation.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fifth day of July, in the year of our Lord two thousand twenty-two, and of the Independence of the United States of America the two hundred and forty-seventh.
JOSEPH R. BIDEN JR.
Why Employees Should Make Timely Complaints About Ageism To HR, And How Companies Can Reduce Ageist Behavior
Last month, a lawsuit against toymaker Mattel revealed some of the most noxious, blatant behavior, including a barrage of ageist taunts, mocking and harassment.
The question is, what do you do about it?
“When someone experiences harassment or discrimination on the basis of their age, speaking up is difficult in a culture of compliance,” explains Mahir Nisar, principal at employment litigation firm Nisar Law Group. “For many, the authoritative nature of the employer dictates one’s openness to share their experiences due to the concern of losing opportunity.”
In other words, speaking up creates a fear of retaliation or future opportunities. Even worse–the fear of lost employment.
The Danger in Not Speaking Up
The obvious danger in not speaking up is that the behavior will continue. And, an ageist workplace will not limit bad behavior to just one person–anyone can become a target. By reporting the complaint to HR, the company then has an opportunity to make corrective changes.
Another essential reason to speak up is that not doing so could jeopardize your legal position, should further action be required.
In the November 2021 decision for Thompson v. Dekalb County, the court dismissed the age case. According to the lawsuit, head attorney Overtis Brantley stated the county’s leadership was tired of looking at all these old people and that she wanted to hire baby lawyers in the law department. The lawsuit also states that, “Whenever Brantley was hiring a new person to the law department, she would say: ‘I’ve got another baby lawyer. I’m filling the nursery’.”
After Thompson was terminated, Brantley hired several younger attorneys to replace him. However, because the ageist statement did not surface until after Thompson’s firing, the court did not deem it conclusive, and the case was dismissed.
In the UK, an experienced financial adviser vying for CEO lost an age discrimination case after being told he was not getting any younger and that the newly appointed CEO was younger and more energetic.
The employment tribunal hearing his case pointed to the fact that the ageist references were only reported after termination.
“When you speak up for yourself through a written complaint, specifying how your rights are being violated due to age-motivated harassment, you advocate for yourself and others like you,” says Nisar.
“Your voice can alter the workplace environment and cater to a culture of accountability to the institution on their promises on diversity, equity and inclusion.”
Action not only helps older workers currently impacted by ageism, but it also helps to create a more age-inclusive workplace so younger employees may be protected from social exclusion in the future.
How to Make an Internal HR Complaint
It’s not only the embarrassment or fear of reporting age bias and discrimination that challenges the workplace. According to Nisar, one problem is that people are not educated on how to complain in a protected fashion.
“When someone experiences age-based harassment or discrimination in terms of being treated differently than others within their workplace, it is important to raise these concerns in a manner protected by law,” Nisar advises.
To make a complaint, Nisar suggests employees:
“Your employer has a duty to investigate and correct the issues you bring to their attention. Secondly, they are not permitted by law to retaliate against you for making a complaint, so they are reluctant when you have a paper trail evidencing your protected complaint,” says Nisar.
- Document a complaint by sending an email to HR. Describe the treatment being experienced, specifying the age discrimination and harassment. Be sure to include what was said or done to you and by whom.
- Retain a copy of the email. Consider sending a blind copy to a personal, non-work-related email.
Other Ways To Protect Yourself
When you experience age discrimination or harassment with comments and behaviors that impact you mentally, emotionally or even physically, it is important to seek help from a mental health provider.
“Too often we do not address how these incidents impact who we are and how we see ourselves. We silence ourselves and tolerate the pain and agony of our experiences when we do not have to,” says Nisar, who always advises clients to seek mental health treatment to help recover from their experiences and move on with life in a healthy and positive way.
If you make a written complaint to HR and the behavior continues, consider filing a complaint at the federal level. The Age Discrimination in Employment Act (ADEA) forbids age discrimination against people aged 40 or older. It does not protect workers under the age of 40, although some states have laws that protect workers of any age.
The ADEA is administered by the Equal Employment Opportunity Commission (EEOC), where complaints are filed. Non-federal workers have up to 180 days to file a complaint, whereas federal employees must contact an EEO counselor within 45 days.
How Companies Can Reduce Age-Related Complaints
The first and most crucial step for companies to address ageism is acknowledging it exists. Then, it’s time to take action!
With awareness, people can create needed workplace change. Like any culture change initiative, combatting age bias is an ongoing process. Real change requires regular reminders, process checks and transparency. Most of all, workplace change decelerates through measurable goals and leadership commitment and accountability.
- Train employees on the myriad of ways that age bias shows up across the age spectrum.
- Ensure “age inclusion” is part of your people strategy across all policies and processes.
- Conduct anonymous employee surveys to measure employee beliefs about age and aging in your workplace. Then build strategies around the gaps.
- Avoid using generational labels that perpetuate age stereotypes.
- Proactively create diverse, age-inclusive teams to dismantle stereotypes.
- Watch internal and external communications to avoid accidental exclusion or benevolent ageism.
- Hire an expert to increase company-wide understanding and awareness.
EEOC Announces Independent Study Confirming Pay Data Collection is a Key Tool to Fight Discrimination
WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC or the Commission) welcomed the report by the National Academies of Sciences, Engineering, and Medicine (National Academies) issued today, which studied the EEOC’s historic, first-time collection of pay data from certain private employers and federal contractors completed in 2020. The study finds that the data EEOC collected may be used effectively by the agency to help focus its resources to identify pay discrimination and offers short-term and long-term recommendations for improving pay data collection by the agency if undertaken in the future. The National Academies study was commissioned by a unanimous vote of the bipartisan Commission in 2020.
“The study confirmed what we at the EEOC have long known – collecting and analyzing pay data can be a useful tool in preventing and combating pay discrimination in American workplaces,” said EEOC Chair Charlotte A. Burrows. “The National Academies’ rigorous examination of the Commission’s historic first pay data collection validates our efforts to collect and use compensation data to achieve pay equity in our nation.”
Specifically, the study finds:
As an example of the data’s potential use, National Academies’ review of the 2018 data revealed some unnamed employers in the Silicon Valley technology sector that have significant race and gender disparities compared to their industry counterparts that are worthy of further examination. For example:
- Collecting pay data is necessary to assess pay practices and differences in compensation by sex, race, and ethnicity.
- The data the EEOC collected is unique and no other federal data collection captures the same information from private-sector employers.
- Response rates from employers submitting pay data were about 90% for this historic, first-time data collection, covering approximately 70,000 employers and over 100 million workers in each collection year, even though EEOC was not able to identify every eligible firm.
- Pay data would enable the EEOC to pursue a more data-driven approach to investigation and resolution of discrimination charges and could be used to help prioritize investigations and the allocation of resources; identify systemic discrimination; and analyze national, regional, and industry-based pay gaps.
- To improve the EEOC’s ability to enforce the law and address pay disparities, the EEOC should expand and strengthen its data collections. It recommended several short- and long-term improvements that would not only enhance the reliability of any future pay data collection, but would also make it easier for employers to produce the information.
EEOC Chief Data Officer Dr. Chris Haffer said, “The report released by the National Academies today is a scientifically sound body of work. Its comprehensive analysis and data driven recommendations provide strategic direction for how to improve collection of compensation data and align with many of the needs the EEOC has already identified and begun addressing as part of the agency’s modernization of its EEO data collections and data analytics.”
- One employer had a -51.3% pay gap for Black men compared to white men in the professionals job category;
- Another employer had a -52.3% pay gap for Hispanic female professionals relative to white male professionals; and
- A third employer had a -52.4% pay gap for Asian female technicians compared to white male technicians.
Because lack of access to pay data has been a longstanding barrier in the efforts to enforce federal laws prohibiting pay discrimination, the EEOC in 2016 voted to collect pay information from certain private sector employers and federal contractors. Although the next Administration stayed the collection of pay data, a federal court rescinded the stay, and the EEOC completed its collection of 2017 and 2018 pay data under court order in 2020.
Given the unique circumstances of the collection and the importance of pay data for enforcement purposes, the EEOC contracted with the National Academies in 2020 to study the pay data collected from private employers, recommend the most effective uses for the pay data, and identify areas of improvement for future collections. The National Academies’ Committee on National Statistics (CNSTAT) assembled a distinguished panel of experts with a variety of relevant expertise and perspectives to conduct the assessment. The panel held public meetings to collect input from stakeholders, including worker advocates, employer representatives, and state and federal agencies, and held closed internal meetings to allow the panel to deliberate and formulate its final report. The report is available on the National Academies’ website here. The National Academies’ webinar about the report will be held on August 2 from 1 pm – 3 pm (ET), and people can register here.
Chair Burrows added, “Pay discrimination continues to be a significant impediment to economic fairness for millions of workers, which, in turn, harms the nation. Yet pay discrimination is hard to fight, because it’s hidden from view. This study confirms that federal pay data collection could be a unique and critically important resource for helping the Commission better identify and combat pay discrimination. The report from the National Academies, together with input from employers, employees, unions, and the public, will help inform the Commission’s decision-making in this area going forward.”
The National Academies of Sciences, Engineering, and Medicine provide independent, objective advice to inform policy with evidence, spark progress and innovation, and confront challenging issues for the benefit of society. CNSTAT was established in 1972 to provide an independent review of federal statistical activities. Its members include experts in statistical and computational methods, survey research, economic, social, and demographic measurement and other relevant fields, who serve pro bono for three-year terms. CNSTAT accomplishes its mission by developing and overseeing consensus studies, workshops, and other activities to review and evaluate statistical programs, methods, measures, and data sources that are used to create national statistics.
The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.
Employment Lawyers Are Sounding the Alarm About a New Virus and Potential Discrimination
"Employers might not be as generous with time off as they were during COVID. I'm not sure monkeypox is going to require that. It's going to be interesting," said attorney Katherine Dudley Helms of Ogletree Deakins.
What You Need to Know
While scientists are still learning how the monkeypox virus is transmitted, some employment lawyers are raising a warning about the potential for discrimination and harassment claims stemming from the virus’s link to gay and bisexual men.
- The incidence of monkeypox among gay and bisexual men raises concerns among some lawyers about an uptick in harassment and discrimination.
- Some types of adverse actions related to monkeypox are covered by New Jersey's Law Against Discrimination, but others might not be.
- Health care employers could be most vulnerable to monkeypox lawsuits because of the hazards of caring for patients with the virus.
Those employment lawyers say they haven’t given much thought to monkeypox, but others see the potential that fear of the virus will prompt an uptick in anti-gay harassment and discrimination. They see parallels to the ostracism that gay men faced in the early days of the AIDS epidemic and the harassment directed at Asian Americans during COVID-19.
Although scientists say anyone can contract monkeypox, the recent outbreak has been concentrated among men who have sex with other men.
In a study in the New England Journal of Medicine on July 21 that examined monkeypox infections in 16 countries, 98% of those infected were gay and bisexual men.
Researchers are studying whether monkeypox can be spread by bodily fluids during sex, the Centers for Disease Control and Prevention said. The virus can be spread by respiratory secretions, contact with the clothing or bedding of someone with monkeypox or direct contact with bodily lesions on an infected person, the CDC said.
In New Jersey, an employee who experiences monkeypox-related harassment from supervisors or co-workers based on their actual or perceived sexual orientation could have a claim against his employer under the Law Against Discrimination, said Julie Levinson Werner, who practices employment litigation and counseling at Lowenstein Sandler.
“I would worry about it from a bias standpoint. It could result in discrimination if people are making assumptions that may not be supported. You always have to worry about people making stereotypes or assumptions,” Werner said. Katherine Dudley Helms, a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart. Courtesy photo
At the University of Texas at Dallas, students are up in arms over tweets by computer science professor Timothy Farage that students said was homophobic and spread false information about monkeypox, according to media accounts.
Farage’s tweets wrongly said the virus is spread through sexual transmission, and he called for scientists to find a cure for homosexuality, according to published reports, which said the university is investigating the incident.
The CDC has recorded 4,639 cases of monkeypox nationwide as of July 27, and the U.S. has not reported any deaths from the virus. That’s miniscule compared with the 90 million infections and 1.03 million deaths from COVID-19 in the U.S.
Werner spends much of her time counseling human resources directors, and they haven’t paid much attention to monkeypox so far, she said. But if the outbreak intensifies, HR people are likely to have to rapidly get up to speed on the issue, as they did when COVID-19 led to widespread lockdowns in March 2020, she said. As for monkeypox, “it probably starts when they hear an employee got sick, or there’s a rumor that somebody has it, and all of a sudden, HR says, ‘Oh my gosh, what do I do,’ and they have to learn and become medical experts on these things.”
Werner said her HR clients should familiarize themselves with monkeypox so that “they’re familiar and understanding of what they need to do to address the situation” if an employee is infected.
Legal protections vary depending on the circumstances for individuals with monkeypox and for men who suffer discrimination based on their actual or perceived sexual orientation and its link to the disease, said Robyn Gigl, an employment lawyer at GluckWalrath and a board member at Garden State Equality, a statewide LGBTQ+ advocacy group.
She offers the example of a man who enters a restaurant but is denied service because the management perceives him to be someone who has sex with other men and therefore might be infected with monkeypox. In that situation, New Jersey’s Law Against Discrimination would provide a cause of action, Gigl said.
Gigl also offers the example of a cisgender woman who becomes infected with monkeypox, informs her boss that she needs to take several weeks off from work, and is fired. There, the legal protection of the LAD is unclear, because monkeypox typically clears up after a few weeks, unlike HIV, which usually remains a lifelong concern, said Gigl.
“She’s not a man who has sex with men. Is that a claim under the LAD? I’m saying that’s a gray area,” Gigl said.
People with COVID-19 in New Jersey are covered by a statute enacted during the pandemic that protected them from workplace discrimination, but no such law exists for monkeypox, Gigl said.
Katherine Dudley Helms, an employment lawyer at Ogletree, Deakins, Nash, Smoak & Stewart in Columbia, South Carolina, said she and her colleagues have been getting calls from clients about monkeypox. Clients are asking hypothetical questions as well as seeking help with real-life problems that have arisen.
Among the questions is whether a hospital is engaging in age discrimination if they assign older workers to care for monkeypox patients. Older workers are more likely to have had a smallpox vaccine, which provides protection from monkeypox, but has not been routinely administered since 1972. Helms said she doesn’t think putting older workers in charge of caring for monkeypox patients is age discrimination.
Helms said the correlation between monkeypox and men who have sex with men makes questions of workplace harassment by co-workers, supervisors and managers a valid concern. She said employers can alleviate that fear by reminding their workforce about corporate anti-harassment policies and making it clear that harassing a co-worker will have consequences. She also encourages employers to make information available so employees can understand monkeypox.
Health care employers are likely to be among the most vulnerable to monkeypox-related suits because of the hazards of caring for people with the virus. So are employers that don’t follow Occupational Safety and Health Administration guidelines on keeping employees safe, Helms said.
Another potential sticking point is how much leave time employers give out to workers with monkeypox. The disease might not warrant as much leave as COVID-19 but the pandemic might have given employees high expectations for time off, Helms said.
“Employers might not be as generous with time off as they were during COVID,” Helms said. “I’m not sure monkeypox is going to require that. It’s going to be interesting.”
Employers risk neglecting remote BIPOC workers because of proximity bias
The pandemic has exacerbated proximity bias, which occurs when companies favor employees working and living closer to the workplace
The ability to work remotely has become beneficial to many workers since the COVID-19 pandemic forced people into their homes. Now, more than two years into the pandemic, as employers try to bring employees back into the office, workers are pushing for a model that allows them to work from home at least part-time. A recent report by Microsoft found that 52% of workers are currently switching to a hybrid work model or full-time remote job. But while hybrid work seems like a good middle ground for some people, it has its own set of problems, especially for BIPOC workers.
One of the biggest issues remote workers deal with is proximity bias. Proximity bias occurs when companies favor employees working and living closer to the workplace, giving them more opportunities to succeed simply because they’re physically present. Today 92 million Americans work remotely, but companies still prefer in-office workers.
“This stems from human nature,” said Suki Sandhu, the CEO and founder of INvolve and Audeliss, organizations that advocate for workplace diversity. “We are social creatures and crave personal contact and association.”
In 2021, 80% of workers who report workplace discrimination said it happened via remote work channels like video conferencing tools and online messaging apps. This happens because in-office workers are often viewed as more productive, while employers may neglect remote employees despite their equal or higher productivity levels. A 2015 Stanford study found that remote employees had higher productivity levels, yet lost out on promotions compared to in-office staff. Studies in the UK have also found a similar pattern. Remote workers were far less likely to be promoted over a five-year period, showing proximity bias is prevalent beyond the U.S.
There’s a reason for this: Several studies show that people are socialized to like a person more if they spend face-to-face time with them. Research by the University of California and UNC Chapel Hill found that simply being seen in the office regularly can result in a leg up over a remote worker, regardless of productivity.
“Think of it this way: who are you more comfortable loaning money to, your next-door neighbor or someone you rarely see who lives on the other side of town?” said Marlon Weems, publisher of The Journeyman, a newsletter that explores the intersection of the economy, politics, and race.
This adversely affects remote workers’ career prospects and mental health. A 2017 Harvard study of more than 1,000 employees shows remote workers felt left out and ignored. Take, for instance, Arya R., an Asian American accountant based in Nevada who worked remotely at a tech company during the pandemic and eventually quit her job due to increasing discrimination.
“Biases like this make remote workers feel unwanted,” she said. “I always gave my best at work and outperformed my colleagues several times, but my in-office colleagues were a part of the ‘in-culture’ and so more likely to be considered for promotion,”
Her experience is echoed by Lakshmia Marie, a Chicago-based remote employee who worked in product management and marketing and eventually left her job to launch The Role Getters, a career-advisory company for marginalized workers.
“I was working with a very high-profile company and many of the team members were distributed but the accolades and attention went only to the hybrid folks,” she said. “They were told things in advance and advised to not tell the remote workers. They also were given way more support than the remote team.”
People of color experience bias more severely
While proximity bias affects everyone, people of color and members of other marginalized communities are more likely to experience it. BIPOC workers often face increased discrimination at work and proximity bias as they’re more likely to prefer working from home.
“Employees of color desire remote and hybrid positions at a higher rate than their white colleagues for various reasons, which include, but are not limited to avoiding toxic work environments, work-life balance, protecting their mental, physical, and emotional health, the desire of more flexibility in when and where they work, working parents opting into remote work due to the flexibility these positions affords them, etc.,” said Shontel Cargill, a licensed therapist and regional clinic director at Thriveworks. “If business leaders aren’t proactively engaging people from communities outside of their own, it can result in career opportunities only being filtered to people with similar backgrounds,” she added.
For women of color who work remotely, finding advancement opportunities can be even more challenging. Several studies show women of color are most likely to experience harassment in the workplace and shoulder most of the responsibilities for child care and domestic work, which makes them more likely to prefer remote work. Women of color already make less money than white women and men, exacerbating the effects of proximity bias.
Remote employees already struggle to be heard over onsite workers, but it can be even more challenging for women and people of color. A survey by Catalyst shows that 45% of women business leaders report it’s difficult for women to speak up during virtual meetings, with 1 in 5 women feeling ignored and overlooked by coworkers during virtual calls.
“Due to a combination of other biases like affinity or appearance bias, we like to spend time with and feel more attached more quickly to people who are similar to us in background, belief, or appearance,” Sandhu said. “When leadership and management profiles are predominantly male and white, proximity bias is just another layer which can negatively impact diverse groups.”
This means management and leadership positions will continue to include white, male, and non-disabled workers who have the privilege of choosing where they work. A Future Forum survey examined by FiveThirtyEight shows white men are the most likely to desire in-person office work while only half of the Black men want the same. This means white males are the least likely to experience proximity bias compared with women, people of color, and disabled workers. Experts say this kind of ongoing pile-up of discrimination can have long-lasting effects.
“The scars of race discrimination that these employees face often never heal,” said Davida S. Perry, an employment attorney handling discrimination and sexual harassment cases. “I have represented several clients who have reported the humiliation of being passed over for promotions in favor of their white counterparts who have no more experience or qualifications than they do.” This only gets worse with remote work as remote workers from marginalized communities can be “overlooked and likely develop low morale, suffer from a loss of confidence and possibly leave the job or the workforce altogether,” she added.
What can help
Bias is a major problem across all industries, but there are ways to minimize the damage. First, awareness can help.
“Knowing there are biases such as proximity bias present in an organization means individuals and leaders are likely to question themselves more regularly,” Sandhu said. “Are business leaders and decision-makers favoring certain individuals because they spend more time with them in person? Is it the quality of their work that makes them seem qualified, or do the casual conversations and workplace chit-chat mean recency, affinity, and proximity bias are at play?”
Building stronger relationships can also help combat worker disconnection.
”More frequent check-ins with remote workers might prove helpful,” Perry said. “Meetings should be held over a platform like Zoom so that remote workers can fully participate,” she added. “Implementing a central messaging platform like Slack can also enable all workers, onsite and remote, to remain in contact with each other.”
Finally, having standardized processes for hiring and promotions are critical. Establishing inclusive procedures and well-functioning collaborative working platforms that are tailored to remote workers can help create more effective communication.
“Proximity bias, and many other biases, are much less powerful if everyone is being assessed by a standard set of criteria based on their work and performance, rather than whether they had a great chat with you while making a cup of tea,” Sandhu said.
Disability-Related Resources for Employers
Disability Discrimination and Employment Decisions
Disability discrimination occurs when an employer or other entity covered by Title I of the Americans with Disabilities Act (ADA) (which protects private and state and local employees) or the Rehabilitation Act (which protects federal employees) treats a qualified employee or applicant unfavorably because of disability. The disability laws forbid discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Definition of Disability
The ADA directs that the definition of disability is construed broadly, in favor of extensive coverage, to the maximum extent permitted by the law. Nonetheless, not everyone with a medical condition is protected from disability discrimination. Under the law, a person has a disability if the person:
A medical condition does not need to be long-term, permanent, or severe to be substantially limiting. Also, if symptoms come and go, what matters is how limiting the symptoms are when they are active.
- Has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function, such as brain, musculoskeletal, respiratory, circulatory, or endocrine function).
- Has a history of a disability.
- Is subject to an adverse employment action because of a physical or mental impairment the individual actually has or is perceived to have, except if it is transitory (lasting or expected to last six months or less) and minor.
Reasonable Accommodation and Undue Hardship
When job applicants or employees request job modifications, the disability laws require employers in the private, federal, and state and local government sectors to provide reasonable accommodations (changes to the ways things are usually done) to employees and job applicants who have or had an impairment that substantially limits a major life activity, unless doing so would cause undue hardship for the employer. A reasonable accommodation can help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.
Some possible reasonable accommodations could be making the workplace accessible for wheelchair users, providing a reader or interpreter for someone who is blind or hearing impaired, making a schedule change, granting telework, allowing leave for disability-related treatment or symptoms, or reassignment to a vacant position where reasonable accommodation is not possible in the current job.
An employer doesn't have to provide an accommodation if doing so would cause undue hardship to the business. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer's size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation, however, just because it involves some cost. An employer does not have to provide the accommodation the employee or job applicant wants, as long as it provides an effective reasonable accommodation. If more than one accommodation effectively meets the disability-related needs, the employer may choose which one to provide
Disability-Related Questions, Medical Exams, and Confidentiality
The law places limits on employers when it comes to asking job applicants or employees to answer disability-related questions, take a medical exam, or identify a disability. Information that employers may obtain about employees’ disabilities must be treated as confidential.
During Employment Application & Interview Stage
An employer may not ask a job applicant to answer disability-related questions, such as if they have a disability, or require them to take a medical exam, before extending a job offer. An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.
After A Job Offer
After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering disability-related questions and/or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions and/or take the exam. An employer may only revoke the job offer if the information reveals the individual cannot safely perform the job (even with reasonable accommodation, if entitled to it).
After Employment Starts
Once an employee is hired and has started work, an employer generally can only ask disability-related questions and/or require a medical exam if the employer needs medical information to support an employee's request for an accommodation or if the employer has objective evidence that an employee is not able to perform a job successfully or safely because of a medical condition.
The law also requires that employers keep all medical records and information confidential and in separate medical files.
It is illegal to harass an applicant or employee because of a current or past disability an actual or perceived physical or mental impairment that is not transitory and minor, or for association with an individual with a disability. Harassment can include offensive remarks about a person's disability. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). Unlawful harassment may occur whether the harasser is the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Retaliation and Interference
Job applicants and current and former employees are protected from retaliation for asserting their rights under the ADA and any of the other federal equal employment opportunity laws. Speaking out about or exercising rights related to workplace discrimination is called “protected activity” and can take many forms, including complaining to a supervisor about harassment. Witnesses who seek to assist individuals affected by discrimination are also protected.
The ADA also prohibits interference with an individual’s ADA rights. Employers may not intimidate, threaten, or otherwise interfere with a job applicant’s or current or former employee’s exercise of ADA rights. For instance, it is unlawful for an employer to use threats to discourage an individual from asking for a reasonable accommodation or to pressure them not to file a disability discrimination complaint.
The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because the employee’s spouse has a disability.
Although the federal anti-discrimination laws don't require an employer to provide a reasonable accommodation to an employee to care for a family member with a disability, the Family and Medical Leave Act (FMLA) may require an employer to take such steps. The Department of Labor enforces the FMLA.
Workplace discrimination is unfortunately still a reality in 2022, and it is especially true for employees within the LGBTQ community.
The problem is that the situation will likely not see much of a change unless we take a stand. It won’t be easy but it may be what is required to create equality for all. If you are facing discrimination at work or you know someone who is, then you have a chance to make a difference. Let’s talk about the issue of discrimination, how to speak up, and methods for caring for yourself and your mental health during the process.
The Reality of LGBTQ Discrimination
While discrimination may not be as bad as it was 20 years ago, it still exists in many workplaces for those in the LGBTQ community. In fact, one out of 10 employees still experiences discrimination and that only accounts for those who responded to the study. Even worse, one in four LGBTQ employees has reported that they have been sexually harassed in some form or another at a current or past job.
There are many forms of discrimination that still occur today and none of them are okay. In addition to being berated by insults or becoming subject to physical violence, this unfair treatment can also come in the form of biased management. For instance, some folks are given lower rankings on their reviews and annual assessments simply due to their sexual orientation, and others may miss out on promotions even if they worked just as hard or harder than their non-LGBTQ colleagues.
While discrimination can often be overt and obvious, sometimes it can come in the form of workplace microaggressions, which are subtle behaviors against marginalized groups that can seem minor at first but can create a very uncomfortable environment over time. An example might be if your coworker says something like that they typically don’t hang out with gay people, but you’re alright in their book. Or it could be a microinvalidation, such as someone saying that they don’t see people as gay or straight, which in addition to likely not being true, also makes your identity invisible.
If you are dealing with these situations or other forms of discrimination at work, then it is time to address the situation.
How to Speak Up
In the case that you do not feel that you are being appreciated at work, it is important to still show respect for yourself and be smart about your initial reaction. When we feel that we are discriminated against, our first natural response may be to yell, cuss, or threaten to sue the boss or the company, but it is important not to hurt your case. The last thing you want to do is accuse someone of discrimination if it is found that it did not exist.
Instead, you first need to determine if this is really a case of discrimination against your sexual orientation. So, if you received a poor annual review or you were passed over for a position that you feel you deserved, then you should start by contacting your boss and asking for written feedback about why you didn't get the job. If the reasoning is that you were late on assignments or they feel you still have more to learn, then look inside and determine if that is really the case and then use that information to improve and try again when the next promotion comes along.
If you are not given a reasonable explanation or you feel that the response is based on discrimination, then you should take the next step, which is to write down the details of the situation, including the times, dates, and the people involved, so you have a solid record. Then, request a private meeting with a representative from your human resources department and state your case. Keep in mind that many companies will have a policy for reporting cases of mistreatment, and if they do, make sure to follow the procedure so you can ensure that your complaint will reach the proper party.
In the case that you have taken the proper steps, but you feel like you are not being heard, then you do have the option to take a legal path and hire an employee rights attorney who will listen to your story and tell you if you have an actionable claim. If you do, then consider moving forward so that future employees do not face the same discrimination.
How to Cope and Stay Healthy
Whether you see an immediate change in your actions or not, it is important that you take care of yourself and your mental health while reporting the discrimination. If you are constantly stressed at work, then you will not only be less effective, but when left untreated, the feelings of anxiety could lead to mental and physical issues. For instance, when we are especially stressed, our body releases a hormone called cortisol, and if we continue to feel anxiety, that increased cortisol production could impact our organs and lead to fatigue and depression.
That is why it is imperative that you try your best to keep yourself as calm as possible while you wait for your company to take action. The key is to try and practice healthy coping strategies to get you through the tough times. We don’t mean that you should ignore your feelings, but instead try to soothe your mind by doing something you love, which could be exercising, listening to your favorite music, or it could simply be that you leave work early that day, so you are no longer in the negative atmosphere.
Most importantly, you can boost your mental health by appreciating the good parts of your life. Think about the friends who love and respect you, the clubs and organizations that you belong to, and the activities that make you truly happy. In the meantime, make sure to continue speaking up against the discrimination you face and see it through until the end.
As many have seen, we still have a long way to go towards total equality, but by speaking your mind and making a stand, you can make a difference and feel comfortable when you walk into work each day.
Over 80% Of U.S. Workers Seek Employers Who Care About Their Mental Health
New findings from the American Psychological Association (APA) suggest the mindset of the American workforce may be shifting. Stressors associated with the COVID-19 pandemic have taken a toll on employee well-being, with many actively seeking new work.
- A new poll from the American Psychological Association shows that 81% of employees would prefer to work for companies that provide support for mental health concerns.
- Discrimination, harassment, heavy workloads, and persistent monitoring all impact well-being at work.
- The number of employers offering improved mental health support has likely increased during the pandemic.
- Yet many employees — particularly those among marginalized groups — may feel their mental well-being isn’t being prioritized in the workplace.
Insights from the APA’s 2022 Work and Well-being Survey reveal that 81% of workers in the United States are seeking employment opportunities at companies that actively support employee mental health. The survey shows that many challenges arise within the workplace itself, particularly in hostile work environments.
“We are currently living in a time with uncertainties created by the ever-changing global pandemic, international unrest, continuing supply chain issues, skyrocketing inflation, and great political divisiveness,” Dennis P. Stolle, JD, PhD, senior director of the APA’s Office of Applied Psychology, told Healthline.
“A typical adult spends one-third of their life working — it’s not possible for employees to leave issues at the door when they arrive at work.”
What the APA survey shows
According to the survey, nearly 1 in 5 workers (18%) described their workplace as somewhat or very toxic.
Stolle noted the percentage was significantly higher among those who do manual labor (22%), compared to those who do office work (15%).
The findings also indicate that one-third of respondents had experienced physical violence, verbal abuse, or harassment at work in the past year.
In addition, companies with a tendency to track employee activity were highlighted in the survey as an emerging factor. Respondents who were monitored at work were twice as likely to report their work environment negatively impacted their mental well-being.
“One of the more surprising results was that more than half [53%] of the respondents reported that their employer monitors them using computers, software, cameras, barcode scanners, or other technology,” Stolle said, adding that the actual number may be higher. “The remaining 47% includes those who do not know whether they are being monitored.”
What employees want from an employer
Some employers have acknowledged the impact of the pandemic on worker well-being and started offering improved mental health support to their staff. According to the APA survey, one-third of workers said their company’s mental health initiatives have improved since the pandemic began.
“71% of our survey respondents said they believe their employer is more concerned about employees’ mental health now than they were in the past,” Stolle said.
“This is good news.”
In addition to mental health support, the survey indicates employees would also like to see:
A vast majority (95%) of respondents view initiatives such as these effective for improving mental health.
- more flexible work hours (41%)
- a culture that respects paid time off (34%)
- the ability to work remotely (33%)
- a 4-day work week (31%)
Supporting employee mental health is key
Stress — one of the most common mental health concerns — may significantly affect well-being.
“Mental health should be a priority in general to achieve overall well-being,” said Taish Malone, PhD, licensed professional counselor with Mindpath Health. “It dictates how we experience a large part of our lives.”
Physiological symptoms of stress may include:
According to Rachel Cavallaro, PsyD, a licensed psychologist with Thriveworks in Boston, stress may also make some individuals more prone to getting sick, leading to increased absences.
Cavallaro noted the impacts of stress on mental health are plentiful and may include:
“Employees may feel unmotivated, complain more, have increased rates of accidents, be more likely to leave, and have an overall sense of low morale,” Cavallaro said.
“Challenges in the workplace can lead to problems with timeliness and punctuality, reduced decision-making ability, poor concentration, inappropriate behaviors or outbursts, and poor relationships with others due to moodiness, irritability, and social withdrawal.”
Ways to support employee well-being
Mental health supports and flexible work hours may offer some improvements to workplace culture. Here are some other strategies employers can implement to prioritize employee well-being.
Prioritize transparency and open dialogues
Stolle noted that nearly half of the survey respondents (46%) expressed concern about what would happen if they told their employer about a mental health condition. They worried whether it would have a negative impact on their standing in the workplace due to stigma.
“While many employers are moving in the right direction of placing more emphasis on employee mental health, we still need to do much more to normalize conversations surrounding mental health,” Stolle said.
Cavallaro added that managers can help reduce fear and stigma by creating a safe and open dialog for employees to discuss their mental health issues if need be.
“Transparency, open door policies, and providing feedback are critical,” Cavallaro said, adding that gratitude is also key. “One of the main reasons employees leave is because they do not feel appreciated by their manager.”
Host regular check-ins about workloads
Excessive workloads inevitably contribute to stress. In fact, the World Health Organization (WHO)Trusted Source reports that people who work 55 hours per week or more are up to 35% more likely to experience a stroke or heart disease.
“In our fast-paced, supply and demand, quantity-over-quality culture, it’s common for employees to feel pressured and be defensive of their work stability by stretching themselves more than they should,” Malone said.
To help mitigate workload-related stress, employers and managers could regularly check in with employees and ask how they can help support them.
Improve diversity from the top down
The APA survey indicates that respondents who live with a disability, are Black, or identify as LGBTQ+ reported higher rates of discrimination in the workplace.
“Until discrimination is fully addressed, some groups are going to continue to suffer disproportionately from work-related mental health issues,” Stolle said.
To begin addressing such concerns, individuals in leadership roles may need to take initiative. “Those in positions of authority can help create and encourage a culture of healthy collaboration, which embraces and respects differences,” Malone said.
To that end, the survey indicates that workplaces with women, People of Color, or LGBTQ+ individuals in senior leadership positions are associated with having better equity, diversity, and inclusion policies.
The APA survey paints a picture of a changing American workforce that desires improvements to mental health support at work.
While the pandemic may have exacerbated stressors among workers, particularly those in marginalized communities, it also provided an opportunity for employers to take action to prioritize employee well-being.
Transparency, manageable workloads and expectations, and improved diversity are some ways employers can support the mental health of their employees at the leadership level. Employees may also benefit from prioritizing their mental wellness outside of the workplace.
EEOC Walks Back its Advice on When Workplace COVID Testing is Appropriate
On July 12, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”) yet again updated its COVID-19 FAQs, revising earlier guidance about worksite screening through viral testing for COVID-19, modifying some Q&As, and making various generally non-substantive editorial changes throughout. According to the EEOC, it revised the guidance in light of the evolving circumstances of the pandemic. Here’s a run-down of the substantive changes in this latest iteration of “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
When is worksite viral screening testing permissible?
Under the Americans with Disabilities Act (“ADA”), once an employee begins work, any disability-related inquiries or medical exams must be “job-related and consistent with business necessity.” At the outset of the pandemic, the EEOC’s guidance considered that this “business necessity” standard for conducting medical exams would always be met for employers conducting worksite COVID-19 viral screening testing. That has changed. The new guidance makes clear that the EEOC no longer considers viral screening to be automatically justified. Going forward, employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19.
Specifically, the guidance states that employers that wish to implement viral screening must meet the “business necessity” standard based on the relevant facts and suggests factors employers may wish to consider in making the “business necessity” assessment:
In considering whether to implement viral screening, the EEOC reminds employers to check the latest CDC guidelines, and any other relevant sources, to determine whether screening testing is appropriate.
- level of community transmission;
- vaccination status of employees;
- accuracy and speed of processing of available COVID-19 viral tests;
- degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations;
- ease of transmissibility of the current variant(s);
- possible severity of illness from the current variant;
- what types of contacts employees may have with others in the workplace or other places they are required to be to perform their work (e.g., working with medically vulnerable individuals); and
- potential impact on operations if an employee enters the workplace with COVID-19.
Is this the end of workplace COVID-19 screenings?
The EEOC states that it does not intend to suggest, through its updated guidance, that screening through testing is no longer warranted, but only that that evolving pandemic circumstances now require individualized assessments by employers to determine whether testing is warranted, consistent with the ADA’s requirements.
Indeed, given the fact that the majority of the country continues to face high or medium rates of COVID-19 transmission, the new guidance may not have an immediate practical impact on the decision of whether to test. Employers that test (or wish to) should nevertheless consistently monitor the CDC and related public health authorities to remain up-to-date on relevant data and advice to support their ongoing decision-making.
The Interactive Process and Reasonable Accommodations
The EEOC’s updated guidance acknowledges that at the outset of the pandemic, issues such as disrupted work routines may have justified delays in an employer’s response to requests for accommodation, but notes that such issues may no longer exist. While novel issues, such as an increased number of accommodation requests as employers push to get employees back in the office, could still affect how quickly an employer can respond to requests and slow the interactive process, the guidance cautions employers not to assume that delays are always justified. As such, the EEOC advises that employers must endeavor to engage in the interactive process in a timely fashion.
The Hiring Process and Withdrawal of Job Offers
Previously, the EEOC guidance briefly stated that an employer could withdraw a job offer to an individual who was required to start immediately if the candidate has COVID-19 or symptoms of it because the individual “cannot safely enter the workplace.” The updated FAQ C4 expands on this guidance to advise that an employer may withdraw the offer if:
The updated guidance further suggests that in cases where only a short period of time is required for isolation or quarantine, an employer may be able to adjust a start date or permit telework (if job duties can be performed remotely). Additions to FAQ C5 remind employers that they may not postpone a start date or withdraw a job offer merely because the individual is older, pregnant, or has an underlying medical condition and the employer is concerned about the applicant’s well-being.
- the job requires an immediate start date;
- CDC guidance recommends the person not be in proximity to others; and
- the job requires such proximity to others, whether at the workplace or elsewhere.
In addition, the updated guidance notes that if an employer screens everyone (i.e., applicants, employees, contractors, visitors) for COVID-19 before permitting entry to the worksite, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19, but only to the same extent as those others.
Return to Work
While the COVID-19 FAQs previously advised that employers may be justified in requesting confirmation from a qualified medical professional that an individual is able to safely return to work (as either a disability related inquiry or a non-disability related inquiry), the updated guidance reminds employers that requesting such confirmation in disability-related cases is justified pursuant to ADA standards as long as the inquiry is job-related and consistent with “business necessity.” The EEOC continues to suggest that employers consider other ways to determine the safety of allowing an employee to return to work if doctors or other healthcare professionals are unable to provide such documentation in a timely manner. Alternatively, the guidance suggests that employers may follow CDC guidance to determine whether it is safe the allow an employee to return to the workplace after being out with COVID-19 without confirmation from a medical professional (i.e., at the end of an isolation period in accordance with CDC guidelines).
Personal Protective Equipment
The updated COVID-19 FAQs also expand upon the EEOC’s guidance regarding the wearing of employer-mandated personal protective equipment (“PPE”) and use of other infection control practices. The new guidance suggests that federal EEO laws permit an employer to require employees to wear PPE and to observe infection control practices in “most instances,” but does not provide examples of circumstances where such requirements are not permissible.
Flexibility for Older Employees
The updated FAQs elaborate on the EEOC’s guidance with respect to the protection of older employees, inasmuch as the risk for severe illness increases with age. While noting that, unlike the ADA, the Age Discrimination in Employment Act (“ADEA”) does not include a right to reasonable accommodation due to age, the EEOC goes on to state that the ADEA does not prohibit employers from providing flexibility to older workers, even if that results in younger workers being treated less favorably based on age. It is important to note, however, that some state and local laws define age discrimination more broadly than the ADEA, including to prohibit discrimination against younger employees. As such employers should be mindful of the applicable law(s) where they do business that might be implicated if older employees are favored to the detriment of younger ones.
Employer Recordkeeping and Confidentiality
The updated guidance also includes examples of when an employer may share confidential medical information (e.g., COVID-19 vaccination status or test results) with an employee who is required to use it to perform their own job duties. Examples include circumstances where:
Where to go from here?
- an administrative employee is assigned to perform recordkeeping of employees’ documentation of vaccination and requires access to information for this purpose (but must keep such information confidential);
- an employee is assigned to permit building entry only by employees in compliance with a work restriction, such as COVID-19 vaccinations, testing, and/or masking (but should only receive a list of the individuals who may or may not enter, but not any confidential medical information about why they are on or not on the list); or
- an employee is tasked to ensure compliance with a testing requirement for employees would need to review testing documentation submitted by those employees (but must keep that testing information confidential).
Employers should consider reviewing their COVID-19 policies or practices to ensure they are consistent with the EEOC’s current guidance. For a thorough analysis, this may require a deeper dive into the latest CDC, state, or local health department guidelines, in addition to review of state and local anti-discrimination laws and regulations.
Disability Discrimination in the Workplace: What You Need to Know About Self-Advocacy
Often, disability discrimination in the workplace happens because of a simple oversight. Just ask Rupa S. Valdez, PhD.
On her first day as an associate professor at UVA, Valdez couldn’t open the bathroom door. It was too heavy. Valdez lives with chronic conditions and she uses a wheelchair. For months, she had to ask coworkers for help every time she went to the restroom.
“It was mortifying,” says Valdez, who is part of UVA’s Disability Studies Initiative. This faculty group studies the social and cultural aspects of disability.
That door now has an automatic opener.
Many employers embrace the principles of diversity, equity, and inclusion. But few include disability in their efforts. The result? Disability complaints abound.
In 2021, workers filed more than 22,000 complaints.
SO, WHAT DOES DISABILITY DISCRIMINATION IN THE WORKPLACE LOOK LIKE?
Here are some ways it could happen:
An employer might mean well. But creating inclusive spaces must be intentional. Otherwise, employee morale suffers. After all, anyone can find themselves in a wheelchair, using crutches, losing sight or hearing.
- A worker with chronic illness denied promotion because of frequent doctor’s appointments
- Someone with Tourette’s syndrome is teased or ridiculed because of their vocal tics
- A person with a disability is denied special technology that could help them do their job
SHOULD I TELL MY EMPLOYER ABOUT MY DISABILITY?
You may fear telling an employer about your disability.
You might worry about:
The good news: You’re not required to disclose this information. But there could be an upside to sharing.
- Your employer not understanding legal requirements
- Being judged or pitied at work
- Employers’ misconceptions that your needs are expensive
- Colleagues thinking you’re getting special treatment
Doing so may “establish a trusting relationship from the beginning,” says Valdez. She advocates for people with disabilities and chronic conditions. In February, Valdez testifiedbefore a U.S. House subcommittee about healthcare inequality.
“You can get a sense of whether this is a place where you’ll get support. Will your experiences be an asset and a value, rather than a liability?”
5 TIPS FOR ADVOCATING FOR YOURSELF AT WORK
Take initiative. Ask for what you need. You may become happier in your job. And that may lead to greater success. Valdez shares five tips for self-advocacy at work.
Know Your Rights
The Americans with Disabilities Act (ADA) protects you. It’s illegal for employers to show bias against qualified workers. This includes:
These resources can provide guidance:
Ask for What You Need
Employers must make adjustments for employees with disabilities to do their jobs.
Valdez, for example, can’t type because of her disability. The university hired an assistant who types for her.
“Know the types of accommodations you might need, and provide suggestions,” says Valdez, whose teaching and research focus on engineering in health care. “Your employer may be knowledgeable in one space and not in another. So, often you may need to educate your employer.”
Ask for supports that help you perform your best. In doing so, you can boost your value to the organization. This may include:
Find an Ally
- Working from home
- Flexible hours
- Voice-to-text software
Many organizations have an ADA coordinator or similar workplace advocate on-site. Reach out to them. Share your concerns. Their goal is to address disability discrimination in the workplace. They may:
They can also help you file a complaint, if needed.
- Help fix access-related issues
- Direct you to resources
- Explain the procedures to follow
Pitch Disability as a Strength
You may want to hide your limitations. But think about the assets you bring to the workplace. Employees with disabilities offer many qualities managers want. By overcoming adversity, you've learned to:
You can tout your resilience, adaptability, and empathy.
- Solve problems
“It’s essential to present disability as an asset. Especially [when] everyone’s thinking about diversity and representation,” says Valdez. “A disabled employee’s lived experience can inform so much in the workplace.”
Build a Community of Support
There’s safety and comfort in numbers. Connect with others living with chronic conditions and disabilities. Exchange ideas about possible office adjustments. Build a network for support when times get tough.
“It’s important to hear stories from others with similar experiences,” says Valdez. “Learn what has worked for them. You’ll get a sense of what feels right for how, when, and if to disclose your disability. [That can help you] advocate for accommodations.”
Cooling Off . . . Revisiting Employee Dress Codes in the Summertime
It’s Summer 2022 – and life is back to normal? Or is it?
While inflation remains high, the labor market remains tight. The Department of Labor’s most recent job report shows that 372,000 jobs were added in June, and the unemployment rate remained at 3.6% for the fourth month.
With workers in short supply, what is an employer to do to attract talent?
A recent article by Sharon Lauby in HR Bartender suggested eight employee benefits worth considering to attract and retain talent. One of those suggested benefits that carries little financial cost to the employer is the so-called “Summer Friday,” which could include anything from skipping Friday work altogether to a relaxed dress code. While few employers may go so far as to cancel work on Fridays, many employers have instituted dress codes that are even more relaxed than a typical Casual Friday.
Here are two practical considerations when implementing or modifying dress codes:
First, the EEOC has weighed in on dress codes, warning employers to be mindful of disability and religious considerations, as follows: The EEOC states:
In general, an employer may establish a dress code which applies to all employees or employees within certain job categories. However, there are a few possible exceptions.
While an employer may require all workers to follow a uniform dress code even if the dress code conflicts with some workers' ethnic beliefs or practices, a dress code must not treat some employees less favorably because of their national origin…
Moreover, if the dress code conflicts with an employee's religious practices and the employee requests an accommodation, the employer must modify the dress code or permit an exception to the dress code unless doing so would result in undue hardship.
Similarly, if an employee requests an accommodation to the dress code because of his disability, the employer must modify the dress code or permit an exception to the dress code, unless doing so would result in undue hardship.
Second, the key is to clearly set expectations on permissible attire, especially in a more relaxed dress environment. Notice again that the EEOC says “an employer may establish a dress code…” Subject to the limitations above, it’s the employer’s right to set its dress code policy. The key is being clear and precise. Consider the example below of a professional services organization that allowed its employees to beat the summer heat by wearing shorts to work:
It has gotten unbelievably hot this summer. If you do not have a client coming in, feel free to wear some nice, ironed shorts with a short sleeve collared shirt to the office for the month of July (we will see how it goes before extending into August). No ripped shorts, no jean shorts, no running shorts, and no t-shirts. The type of shorts and shirts that most people would wear out on a nice golf course. If someone is going to have a client in the office on a given day and don’t feel they would like to see shorts, give me advance notice and we will announce it and go back to normal wear for the day. Have a great 4th of July.
Finally, employers should aim to make dress codes as broadly applicable as possible. For example, a dress code that only permits men to wear shorts during warm summer months may raise gender discrimination concerns under Title VII and similar state laws. The above example provides a good illustration of a broadly-applicable gender-neutral dress code policy.
There are many ways to attract and retain talent. Allowing a relaxed summer dress code may be a way to start. But like everything in life, there are occasions when “no good deed goes unpunished.” Beware of pitfalls arising from failure to clearly outline the dress code, from inconsistently applying it, and failing to recognize accommodations
Here’s to remaining cool during the rest of the summer!
Equal Pay Gains Dampened as Wage Gaps Widen for Women of Color
Some incremental progress has been made in the effort to bring equal pay to women in the workplace, but data indicate women of color still face certain inequities exacerbated by the Covid-19 pandemic, widening their respective wage gaps from last year.
- Salary history inquiries, job segregation to blame, some say
- Arguments persist whether EEOC pay data rules helped
Average hourly earnings for all workers picked up by 5.1% over the past year through June, according to the Labor Department’s June Jobs Report released July 8. The report concurrently showed that while the workforce participation rate for White women remained steady, workforce participation rates for Black women and women overall declined in the last month, underscoring the economic disparities often seen between different racial groups.
That echoes a similar pattern shown by the U.S. Census Bureau’s Current Population Survey data, which the National Women’s Law Center analyzed in a March report. While “Equal Pay Day,” the day at which women reach the same average annual wages as men earned in the previous year, was celebrated on March 15 with a nine-day jump forward from last year, the respective Equal Pay Days for women of color all decreased.
For Black women, the day retreated from Aug. 3 to Sept. 21; changed from Sept. 18 to Nov. 30 for American Indian women; and moved backward from Oct. 21 to Dec. 8 for Latina women.
State efforts to fix these inequities often fall flat. A law in Mississippi that took effect July 1 has faced criticism from advocates and even the EEOC for providing broad defenses to employers and giving far fewer protections to workers than current nationwide laws.
Business leaders could take up the mantle to address equal pay in the workplace, stakeholders say.
Internal equal pay audits, for example, could identify and eliminate some of the problems associated with gendered and racial pay disparity, but evaluating a position’s starting rate is one of the most critical factors for them to consider, said Camille Olson, a labor and employment partner at Seyfarth Shaw LLC in Chicago.
“There’s sort of a statement that some people say—if you start low, you’re going to end low,” Olson said. “You have to look at those starting pay positions to determine if they’re appropriate and that you’re not paying women and men differently, or minorities and non-minorities differently.”
Salary History Curbing Gains
Workers who have found themselves to be desirable candidates in the tight labor market have fought unequal pay by leaving for other higher-paying jobs.
Most job moves see a standard pay increase of about 10% to 20%, but nearly a third of employees who left their company during the pandemic made over 30% more, according to a report by the Conference Board.
Salary history inquiries by hiring managers, however, could offset this edge and perpetuate the historically low wages that women receive.
“If you set pay in a new job based on what someone was earning in their last job, and you’re in an economy where women and people of color are typically paid less than White men, that system allows for pay discrimination,” said Emily Martin, vice president for education and workplace justice at the National Women’s Law Center.
Twenty-one states have passed laws limiting employers from asking for an applicant’s pay history. President Joe Biden also signed an executive order last month preventing federal contractors from asking about someone’s prior pay in the hiring process.
Martin said the NWLC’s data suggest salary history bans “have really made a difference and have led to higher wages for women and people of color when they shift jobs, since employers can’t pay them based on what they were making in their last job.”
Pay Data Collection Solution?
The EEOC in April teased a return of its controversial requirement that companies disclose pay data through the annual EEO-1 survey. The agency said in 2020 that it would halt the requirement, pending further study, after a court-ordered collection ended.
Seyfarth Shaw’s Olson testified against the EEOC’s proposed pay data requirement in 2016 when it was first introduced, stating it wouldn’t ensure that employees are paid fairly and would instead “impose enormous burdens and risks to employers who base complex compensation decisions on factors other than membership in a particular EEO-1 category.”
Among other security and confidentiality concerns, employers also found the requirements ineffectual because of the “aggregated data that they were providing,” said Sadé Tidwell, an associate attorney on labor and employment in the D.C. office of Seyfarth Shaw. The pay groups were too broad for employers to accurately report what was happening in the company, “allowing people to make misleading conclusions based on the data without further information,” she said.
However, “The reason that we need the EEOC to have that additional information is because, otherwise, we’re really in the dark when it comes to pay discrimination, because of the secrecy that surrounds pay,” Martin said. “And this is a really important way of shining some light on pay practices and giving the EEOC the tools it needs to enforce our pay discrimination laws.”
Segregation in Job Market
The types of jobs women traditionally have had also plays a role in their historically lower wages. Women are often pigeonholed into teaching, cleaning, and child-care jobs, according to Priscilla Murolo, a retired Sarah Lawrence College labor history professor.
“There’s still a lot of racial segregation in the job market,” Murolo said. If society deems that certain jobs are “female” jobs, “they are paid little because people imagine that they don’t really require much training,” she said.
A 2021 McKinsey & Company report also found that Black workers are primarily concentrated in low-wage, front-line jobs, and underrepresented in fast-growing, higher-wage industries and executive roles.
The solution to this is twofold, Murolo said. First, employers should start paying higher wages for those perceived low-skilled jobs, and more school-aged girls should be recruited into apprenticeship programs, lending them the skills needed to acquire high-paying work in the future, she said.
Nonbinary Pronoun Usage in the Workplace: What Employers Are Doing to Promote Inclusivity
Using the correct pronouns and honorifics in the workplace has become an increasingly important part of maintaining an inclusive workplace. At the same time, the sensitive nature of this trend and the many variations of pronouns and honorifics in use may leave employers confused as to how to accomplish that goal. Moreover, employers may be concerned with how to comply with employees’ requests in an ever-evolving space and with the increasing use of nonbinary pronouns.
Nonbinary Pronouns and Honorifics
Individuals have traditionally identified with binary sets of pronouns based on male and female gender expressions (i.e. he/him/his and she/her/hers). Increasingly, many individuals are expressing that they do not identify as either a “man” or “woman.” An estimated 11 percent of individuals who identity as LGBTQ in the United States (i.e., approximately 1.2 million people), identity as nonbinary, according to a recent study. The vast majority (76 percent) are between the ages of 18 and 29, the study found.
It is increasingly common for these individuals to go by gender-neutral, nonbinary pronouns, including they/them/theirs. Many others go by other nonbinary pronouns, such as ze (or zie)/zir/zirs; ne/nir/nirs; xe/xem/xir; and ve/ver/vis, or a growing set of nonbinary pronouns that are resurfacing or newly appearing within the U.S. vernacular. Similarly, honorifics, such as Mr., Miss, Mrs., Ms., Sir, and Madame reflect a binary gender view leading some individuals to go by “Mx.,” “Fren,” or another gender-neutral honorific.
The issue has particular significance for employers since the June 2020 decision by the Supreme Court of the United States in Bostock v. Clayton County, Georgia, which found that discrimination against gay and transgender individuals is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. The high court reasoned that an adverse action against an individual because the individual is gay or transgender is a form of discrimination based on sex “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” However, the Court left open several questions on how the ruling applies to sex-segregated restrooms, dress codes, grooming standards, and pronouns.
Following the decision, the Equal Employment Opportunity Commission (EEOC) issued new guidance on June 15, 2021, taking the position that “intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment” in violation of Title VII. This suggests there could be potential liability for employers who refuse to use a nonbinary employee’s correct pronouns. Further, while Title VII does not cover every employee in the United States, many state and local laws, such as California’s Fair Employment and Housing Council’s regulations and the New York City Human Rights Law (NYCHRL), provide similar or greater protection from gender identity discrimination.
It is increasingly becoming a commonplace practice for companies to permit employees to include their pronouns in their email signatures or on their social media profiles. This trend might just be the start. In light of the evolving movements in these areas, some employers may be struggling with how to support nonbinary individuals in their workplaces.
Some employers will take the stance that it is important to provide safe spaces for employees to identify their pronouns without pressure or the worry of retaliation in order to maintain an inclusive environment. Employers may further want to consider additional training for supervisors and other employees on how to handle everyday interactions regarding pronoun use. For example, employers may want to encourage employees to be comfortable with apologizing and correcting themselves if the wrong pronoun is used. This may be an especially important subject if an employee had started at the company using one set of pronouns and later realizes a different gender identity during the course of employment. A diversity, equity, and inclusion (DEI) committee or diversity liaisons can guide employers in facilitating these conversations.
At the same time, employers are faced with the tension of ensuring respect for each individual’s privacy. In this regard, employers may want to be conscious that individuals generally will not want to be into a situation in which they must choose between using a nonbinary pronoun or facing inappropriate questions about their choice from management or co-workers. It may be necessary to keep pronoun sharing optional and to encourage employees to default to gender-neutral language where possible.
Gender-Neutral Corporate Communications and Record-Keeping
The Biden Administration, in March 2022, announced a series of federal government policy changes to allow U.S. citizens to identify as nonbinary, including allowing U.S. citizens to select an “X” gender marker on their U.S. passport applications. In accordance, the EEOC also announced that it would provide the option to use a nonbinary gender marker in the filing of a charge of discrimination. Several states have further allowed the use of a gender-neutral marker on state identity documents, including drivers’ licenses. Given these developments, employers may also want to consider using gender-neutral language in communications and updating their human resources demographic record-keeping procedures to allow for employees to be identified as nonbinary or with a gender-neutral marker.
The Bostock decisions and the proliferation of state and local anti-discrimination laws may require that employers make efforts to allow employees to share and be addressed by nonbinary pronouns. This could be critical in employer recruiting and retention with younger generations entering the workplace that are increasingly comfortable with expressing their nonbinary gender. Also, it is clear that accurate or appropriate pronouns and honorifics will continue to change. Employers may want to remain ready to adjust in this rapidly evolving space in order to provide inclusive environments and keep workplaces free of harassment and discrimination.
Companies seeking to create more inclusive workplaces for nonbinary individuals can find further information and guidance from a number of organizations that provide educational resources and technical assistance.
What is the CROWN Act, what do I need to know about it, and how should employers prepare for it?
On March 18, 2022, the U.S. House of Representatives passed the Creating a Respectful and Open World for Natural Hair (CROWN) Act by way of a party line vote of 235-189. In general, the federal CROWN Act and similar state acts explicitly prohibit discrimination on the basis of a person’s natural hair. More specifically, the proposed federal legislation prohibits “discrimination based on a person’s hair texture or hairstyle if that style or texture is commonly associated with a particular race or national origin” and seeks to ban race-based hair discrimination in the workplace, federal programs, and public accommodations. The U.S. Senate has not yet voted on the Act. If enacted into law, the federal law would be treated as incorporated into Title VII of the Civil Rights Act of 1964 which, among other things, already bans discrimination on the basis of race and national origin. While the fate of the bill at the Senate is unknown, several states have already passed similar CROWN Acts and several others have introduced CROWN Acts in the hopes of making it law. Given the national attention the CROWN Act has received, employers are smart to ask which states already have these laws in effect and what they need to know about these laws so they can prepare.
Do any states have their own CROWN Acts?
Yes. California was the first state to pass a CROWN Act in 2019 and, as of the date of this post, 16 states have passed similar legislation. To date, the following states have passed similar state or territory-level hair discrimination laws: California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Virginia, Washington, and the U.S. Virgin Islands. Localities in various states including Arizona, Colorado, Florida, Georgia, Kentucky, Louisiana, Maryland, Michigan, Missouri, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Texas, Washington, West Virginia, and Wisconsin have also instituted ordinances or other directives prohibiting hairstyle and texture-based discrimination.
State hair discrimination laws are similar to the federal law, but consulting an experienced labor and employment attorney as to your state’s CROWN Act is recommended.
Why are CROWN Acts passed?
Proponents of these laws view the legislation as way to address systemic racism and to prohibit the removal from—or denial of—employment due to an individual’s natural hairstyle. For a long time, courts declined to recognize that discrimination on the basis of someone’s appearance could be discrimination on the basis of that person’s race or national origin. Advocates of CROWN Acts say this historical lack of protection from hair discrimination is largely due to a lack of understanding about how a person’s hair choices are connected to their race or national origin. The hair discrimination laws being introduced and passed are an attempt to address this issue.
What do courts have to say about the issue?
This issue played out between disagreeing appellate judges in EEOC v. Catastrophe Mgmt. Sols., 876 F.3d 1273, 1274 (11th Cir. 2017). In that case, an employer refused to hire any applicant who had an “excessive hairstyle” and ultimately relied upon that policy in declining to hire a Black woman who wore her hair in dreadlocks. The Eleventh Circuit held that “dreadlocks are not, according to the EEOC’s proposed amended complaint, an immutable characteristic of black individuals.” The majority’s rationale was that a person does not have to wear their hair in dreadlocks, therefore dreadlocks are not immutable and not protected under Title VII. The EEOC argued that “dreadlocks are protected under Title VII because they are culturally and physiologically associated with individuals of African descent,” the exact sentiment underlying CROWN Acts.
One judge wrote a scathing dissent, stating:
The discriminatory animus that motivates an employer to ban dreadlocks offends the antidiscrimination principle embodied in Title VII just as much as the discriminatory animus motivating a ban on Afros. Both are distinctly African-American racial traits.
. . .
In other words, when an aspect of a person’s appearance marks her as a member of a protected class and her employer then cites that racial marker as the reason for taking action against her, the employee’s race probably had something to do with it. Whether that racialized aspect of her appearance is ‘immutable’ such as skin color or ‘mutable’ such as hair is beside the point. Either way, the employer’s action based on a racial identifier is an action based on the employee’s race.
Legal disputes asserting claims of hair-based discrimination continue to be filed, including a lawsuit filed by a Black man who applied for re-employment following furlough. The plaintiff’s lawsuit asserts that he was told by the hiring manager that he would have to conform his appearance to company policy, which meant that he would need to cut his locs. See Thornton v. Encore Group USA LLC, No. 37-2021-00049996 (Cal. Super. Nov. 29, 2021) This and other disputes centering around alleged hairstyle or texture discrimination appear to be here to stay, particularly with the increasing number of state laws providing an avenue for workers to seek redress.
What does the CROWN Act momentum mean for employers?
Hair discrimination laws seek to expand the scope of characteristics that may give rise to actionable claims of discrimination, including in the workplace. Given the current momentum behind this movement and legislative trends, employers operating in states or localities with hair discrimination laws should be mindful of these new protections for workers. Employers should also consider revisiting dress and/or grooming policies to ensure that they do not prohibit employees from wearing particular hairstyles commonly connected to racial, ethnic, and religious identity. Additional training for management personnel and those with interviewing or hiring responsibilities—including implicit bias training—may also be beneficial to ensure that hiring decisions are based upon proper grounds, and do not implicate potential hair-based discrimination.
If you are an employer in one of these states seeking guidance on your state’s new CROWN Act, or if you are an employer seeking guidance on how you can guard against hair discrimination in the workplace regardless of your state’s laws, you should contact an experienced labor and employment attorney.