SEPTEMBER DIVERSITY, EQUITY, AND INCLUSION UPDATE
Sept 6th, 2022
Matt Glowacki, Diversity Equity & Inclusion Chair
Jefferson County HRMA & WI SHRM
What is Quiet Quitting?
The now viral phrase "quiet quitting" is annoyingly imprecise and misleading.
Some say it means doing the bare minimum at work or just not going above and beyond. Others say it's about setting healthy boundaries or not mindlessly buying into 'hustle culture.' And then there are those who say it's about taking back control of your time and standing up to employers expecting you to do more without paying you more.
But one thing quiet quitting is not about is someone actually quitting. At least not yet.
So, managers and leaders, especially those facing staff shortages, might view the concept less as a threat than an opportunity to re-engage your employees by asking what really interests them in their work and letting them prioritize their efforts accordingly. And at the same time to better prioritize what is essential for teams to be doing, and what isn't.
"It's on [managers] to genuinely and authentically understand where people are coming from," said Simone Ahuja, a Fortune 500 strategic consultant who focuses on fostering innovation. "One of the things [supporting] innovation is ... radical prioritization by employees and managers and leaders."
Consider possible origins
There is no universal reason why someone may quiet quit.
Maybe they're experiencing burnout — which hit a lot of people during the pandemic.
Telling your boss that you're burnt out can be scary ... and futile because managers often will say they'll see what they can do, but then nothing happens, said Ashley Herd, founder of ManagerMethod.com and a former employment attorney and human resources executive.
So quiet quitting may be an employee's way of "taking control and having boundaries," Herd said. "Managers should be concerned if their expectation is for people to go above and beyond constantly. It doesn't serve anyone if you burn out."
Or maybe someone is choosing to give a little more priority to their life outside of work than they used to or than "hustle culture" tolerates.
That doesn't mean, however, they don't think work is important, or that they won't do a good job.
But at the same time, Ahuja noted, an employee may not want to be defined entirely by their job. After all, the pandemic and a series of other ongoing crises in the world have reminded everyone just how fragile life is and have forced them to seriously reconsider what they want out of it.
And of course, there will always be the person who quiet quits because they hate their job, or are ill-suited to it and should be looking for something else or reassigned. But they don't want to lose a paycheck.
In any case, assume nothing about anyone until you find out more. "Assumptions always lead us astray," Ahuja said.
Talk to your team as a group and one-on-one
Getting buy-in from your employees on how best to achieve their team's and their personal goals while also allowing everyone space for their lives outside of work can go a long way toward boosting retention.
"Have a genuine inquiry — people feel cared about when they're invited in to a co-design process," Ahuja said. "Ultimately, we all want to be in a sandbox that's fun to play in."
But figuring out how to make it all work for everyone involves a lot of open communication. For instance, don't ask if or assert that someone is quiet quitting. "It has a negative connotation for very valid feelings," Herd said.
Instead, she suggested, find out how they've been doing, how they feel about their workload, and whether they're able to balance it with everything else they have going on.
And don't just give lip service to feel-good ideas — e.g., that work shouldn't be the only priority in people's lives. Model the behavior. Be vocal about when you're leaving or taking a day off or going offline to be with family, Herd said. And don't send emails at all hours of the night.
It's also always a great idea to publicly recognize a job well done. Just don't limit the praise to employees who put in long hours to complete a project — which, sure, will be required at times in any workplace. Do the same for employees whose work is consistently excellent and completed within the normal hours of work. And hold that up as a good example for others to follow.
"Celebrate that," Herd said. "[Ask] how are you doing it? We'd like to model that."
What Are the Signs of Discrimination at Work?
Workplace discrimination is essentially when an employee is treated unjustly due to their identity attributes, including age, race, gender, sexual orientation, national origin, religion, disability, marital status, or pregnancy. It creates a hostile work environment, making it hard for someone to pursue their career. Discrimination at work can happen at any stage, from hiring to termination.
Some signs of workplace discrimination are apparent, but others are subtle. Thus, it is vital to pay attention to how your superiors and coworkers treat you.
Nonetheless, it will also help to know what does not constitute workplace discrimination. Examples include your employer giving you work, receiving work-related criticism, being disciplined appropriately, your employer having an opinion that differs from yours, being asked to join a committee or meeting because of your gender for equal representation, or getting/not getting a job position that is critically depended on a certain age.
Now let’s discuss how you can tell sooner when you are discriminated against at work. The following are signs to look out for:
If your employer asks inappropriate questions about an element of your identity, it may be considered workplace discrimination. For example, ‘[d]on’t you think you should retire earlier?’.
This sign is mostly seen during the hiring process. If an interviewer asks you suspicious questions, you need to be alarmed. Examples include, do you have children? Are you planning to start a family? Are you married/divorced? Where were you born? Are you disabled? Just to mention a few.
However, the US government requires employers to obtain certain information from applicants for census data or affirmative action programs. You may therefore be respectfully asked a few questions about your identity. The interviewer will inform you of the importance of asking you such questions.
Examples include, are you legally allowed to work in the US? If hired, can you provide proof of work authorization? Can you perform all the duties listed in the job description? What is your race/ethnicity? Are you a veteran? In most cases, you may be allowed to decline to answer, without affecting your employment chances.
Lack of Diversity
If your company is disproportionately filled with workers from a specific race, gender, age, sexual identity, and so on, it can be proof of discrimination during the hiring process. Employers can get competent employees from all groups of applicants.
Not Getting Promotions
If your employer constantly overlooks you for promotion opportunities, yet you are qualified, more experienced, and have good performance, examine everyone who is favored. Are they younger or older? Or from a particular race, skin color, gender, or sexual identity? If you notice a common factor in their attributes, you may be experiencing workplace discrimination.
No one should use disrespectful language when communicating with you at work. If someone makes derogatory comments about your identity element, they are discriminating against you. Furthermore, this sign is not always obvious. At times, a hurtful statement can be said subtly. For instance, one can say ‘you people’ ‘us,’ or make generalized remarks about a group you belong to. You need to be alerted if this happens, even if it is disguised as teasing or jokes.
Employers should pay employees of a particular rank, handling the same amount of work, equally. It is not fair for employees to receive unequal pay. You can tell if your employer is paying you differently by discussing salaries with co-workers. Some companies discourage this, but it can be the only way to discover when you are being discriminated against.
If you are unfairly terminated from work, you may have experienced discrimination. This includes being dismissed due to your disability status, health condition, or standing up for a colleague who was treated unjustly. You should also take action if your position is permanently replaced when you return from maternity leave.
What Is Affirmative Action?
The term affirmative action refers to a policy aimed at increasing workplace and educational opportunities for people who are underrepresented in various areas of our society.
Affirmative action focuses on demographics with historically low representation in leadership, professional, and academic roles. It is often considered a means of countering discrimination against particular groups.
Affirmative action programs are commonly implemented by businesses and governments by taking individuals' race, sex, religion, or national origin into account when hiring.
- Affirmative action seeks to reverse historical trends of discrimination against individuals with certain identities.
- It provides financial assistance to groups that historically have been and continue to be subjected to forms of discrimination.
- Policies often implement hiring quotas, provide grants and scholarships, and may also deny government funding and contracts to institutions that fail to follow policy guidelines.
- Affirmative action now includes assistance for gender representation, people with disabilities, and covered veterans.
- Criticism of affirmative action emphasizes high program costs, the hiring of fewer qualified candidates, and a lack of historical progress in equal representation.
How Affirmative Action Works
The main purpose of affirmative action is to diversify various parts of society. It is a government-backed policy that was developed to provide inadequately represented groups of people with access to opportunities in academia, the private workforce, and government jobs.
These opportunities include admission to schools and jobs in professional positions, as well as access to housing and financing.1
History and Implementation
The affirmative action policy rose to prominence in the United States in the 1960s as a way to promote equal opportunity for various segments of society. The policy was developed to enforce the Civil Rights Act of 1964, which sought to eliminate discrimination.2
Early implementations of affirmative action largely focused on halting the continued social segregation of minorities and other disadvantaged individuals from institutions and opportunities.
Despite legislation that outlawed discrimination practices in the U.S., tangible change in the status quo was not immediate.2
In more recent years, campaigns have expanded to make organizations and institutions even more inclusive by pushing for greater gender diversity. Newer policies are also aimed at providing more access to opportunities for covered veterans and people with disabilities.
Covered veterans are veterans who are disabled, who served on active duty in a war or other campaign and have a campaign badge or a service medal, or who are recently separated from the Armed Forces.
Elements of Affirmative Action
Efforts to stimulate change can take the form of financial assistance such as grants, scholarships, and other support earmarked to help with access to higher education opportunities.
In addition, hiring practices may be structured to require the inclusion of diverse candidates for consideration for job openings. Government agencies may mandate that companies and institutions populate their ranks with a minimum percentage of qualified professionals from varying ethnicities, genders, and cultures.
Failure to meet such requirements could disqualify institutions from receiving government funding or being able to compete for public contracts.
People confuse employment equity with affirmative action. There's a distinct difference between the two. Employment equity attempts to ensure that all individuals are treated equally while affirmative action actually supports those people in particular who historically have been denied opportunities.
Examples of Affirmative Action
Affirmative action has been put to work since the 1960s, despite lack of progress at times and rulings by legal authorities such as the Supreme Court that have hindered it. Here are some examples of the policy in action.
- In 1965, President Lyndon B. Johnson issued Executive Order 11246. It required that all government contractors and subcontractors expand job opportunities for minorities. It also established the Office of Federal Contract Compliance (OFCC) to enforce the order.
- In 1970, the Labor Department ordered and authorized flexible goals and timetables to address the underutilization of minorities by federal contractors. In 1971, women were included in the order.
- In 1973, President Richard M. Nixon signed the Rehabilitation Act of 1973. It required agencies to submit an affirmative action plan to the EEOC that detailed the hiring, placement, and advancement of individuals with disabilities.
- In 1983, President Ronald Reagan issued Executive Order 12432. It required every federal agency with substantial procurement or grant-making authority to develop a Minority Business Enterprise development plan.
- In 1990, President George H.W. Bush signed the Americans with Disabilities Act. A year later, he signed the Civil Rights Act of 1991.
- In 1998, the U. S. House of Representatives and the U. S. Senate stopped attempts to eliminate specific affirmative action programs. Both houses of Congress prohibited the abolishment of the Disadvantaged Business Enterprise program. In addition, the House refused to allow the elimination of affirmative action in admissions in higher education programs funded through the Higher Education Act.3
- In 2022, the Wall Street Journal reported that dozens of major U.S. companies including Apple, Alphabet, American Airlines, and General Motors were urging the Supreme Court to uphold the continued use affirmative action policies in college admissions. They asserted that greater diversity on college campuses contributed to ongoing innovation in commerce and successful business endeavors.4
Advantages and Disadvantages of Affirmative Action
The implementation and continued use of affirmative action policies have drawn strong support as well as staunch criticism.
An obvious benefit of affirmative action is the opportunities they provide to people who otherwise might not have them. These opportunities include access to education for students who may be disadvantaged and career advancement for employees who may be blocked from rising up the corporate ladder.
Proponents of affirmative action say that the effort must continue because of the low percentages of diversity in positions of authority and in the media, as well as limited acknowledgment of the achievements of marginalized or unrepresented groups.
Opponents of affirmative action frequently call these efforts a collective failure. They cite as evidence the tiny changes to the status quo after decades of effort. The cost of such programs, coupled with a belief that affirmative action forces the populace to make unwarranted accommodations, drives a significant part of the opposition.
Certain individuals believe that there is little to no bias in society. They argue that affirmative action results in reverse discrimination, which can often lead to qualified candidates being overlooked in academics and the workplace in favor of less qualified candidates who meet policy standards.
- Provides opportunities for minorities and people from disadvantaged groups
- Diversifies society
- Costs to implement policies can be too high
- Leads to reverse discrimination
Affirmative Action Statistics
Affirmative action is a very controversial topic and often leads to heated debates between those who support it and people who feel it doesn't benefit society. Is there a way to quantify how people feel and how it's working?
According to a Gallup poll, more than half of Americans (61%) believe in affirmative action policies. This level of support has increased since the last poll, where only 47% to 50% of individuals thought affirmative action was necessary. This increase in support is especially important, given the active issues surrounding race and identity in the U.S. and elsewhere.5
Many Americans feel positive about diversity. They are comfortable with the makeup of their communities, saying diversity positively impacts society as a whole.
There is some divide when it comes to identifying race and ethnicity for purposes of hiring. In fact, about 74% of individuals feel that a candidate's racial or ethnic background shouldn't be considered when hiring or promoting them. These activities should only be based on someone's merit and qualifications.6
What Is the Goal of Affirmative Action?
The goal of affirmative action is to increase opportunities for individuals and groups that historically have been underrepresented or, in some cases, barred, from certain areas of academia, the government, and the private sector workforce. Affirmative action policies provide funding in the form of grants and scholarships to these communities.
Policies were adopted to help those from different racial backgrounds and national origins. They have expanded to address gender, sexual orientation, and various disabilities.
What Has Been the Result of Affirmative Action Policies in Higher Education?
Affirmative action policies have helped diversify higher education. When first adopted, the student body at most higher education institutions was primarily white. That has changed, leading to more diverse and vibrant student populations across the country.
How Did Regents v. Bakke Change Affirmative Action Policies?
The Regents v. Bakke case changed affirmative action policies by striking down the use of racial quotas. The case was presented by Allan Bakke, who claimed he was denied admission to medical school at the University of California on two separate occasions because he was white. The Supreme Court ruled in Bakke's favor, saying racial quotas were unconstitutional.
Which U.S. President First Defined and Used the Term Affirmative Action?
That was President John F. Kennedy. He did so in 1961, telling federal contractors to take "affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin."
United States: Excluding Pregnant Workers From Light Duty Does Not Necessarily Violate The Pregnancy Discrimination Act
An employer can lawfully require pregnant employees with lifting and other restrictions to go on leave and deny temporary light duty work available to workers injured on the job. On August 16, 2022, the Seventh Circuit Court of Appeals upheld Wal-Mart Stores East, L.P.'s (Walmart) "Temporary Alternate Duty" Policy (TAD Policy) that offers light duty only to those workers injured on the job. Equal Employment Opportunity Commission v. Wal-Mart Stores East, L.P., (2022 WL 3365083).
In September 2018, the Equal Employment Opportunity Commission (EEOC) filed a class action lawsuit against Walmart, claiming that the denial of light duty to pregnant women violated the Civil Rights Act of 1964 and the Pregnancy Discrimination Act. Under the TAD Policy, Walmart offered light duty to workers injured on the job who wanted to keep working and earning their full wages while complying with relevant medical restrictions. Walmart claimed the TAD Policy was designed to comply with Wisconsin's worker's compensation laws and reduce overall costs while improving employee morale. Walmart did not offer light duty, under the TAD Policy or otherwise, to pregnant workers or workers who were injured off the job.
The Pregnancy Discrimination Act amended Title VII to provide "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work." Id. (emphasis added). The Court found that Walmart established a legitimate, non-discriminatory reason for the TAD Policy, and excluding pregnant employees and all other workers was not discriminatory. The Court rejected the position that pregnant workers are entitled to "most-favored-nation" status. The Seventh Circuit distinguished this case from prior cases, including one involving United Parcel Service (UPS), where UPS denied light duty to a pregnant driver. The facts in the UPS case were that UPS not only accommodated drivers who had become disabled through on-the-job injuries but also those who had lost federal Department of Transportation certifications, and those who had disabilities covered by the Americans with Disabilities Act of 1990.
Nevertheless, employers should consult with their employment law advisors when implementing policies that apply exclusively to specific groups of employees or before responding to requests for accommodations by pregnant employees.
Accommodating Transgender Employees Starts With Compassion
Compassion can be a wonderful tool in many of the things we do in Human Resources and the labor and employment legal world. It’s also a great starting point when an employee walks into an HR or supervisor’s office to say they will be gender transitioning.
When accommodating transgender employees at work, quite a number of federal, state, and local laws can come into play, including Title VII, Title IX, OSHA, and the ADA. Ever since the Supreme Court ruled in the Bostock case that the term “sex” in Title VII protects against discrimination based on sexual orientation and gender identity and expression, it has been clear that these employees have legal protections throughout the U.S.
Along those lines, very recently, another federal court of appeals ruled that not just Title VII, but also the ADA, provides protections for employees diagnosed with gender dysphoria (the feeling of discomfort or distress that might occur in people whose gender identity differs from their sex assigned at birth or sex-related physical characteristics). This ADA protection not only means that employers cannot discriminate against transgender employees with this condition but also – very importantly – that employers must reasonably accommodate such employees under the ADA.
Back to compassion.
It is clear that employers have legal obligations and want to stay out of court. On top of those legal formalities, most employers also want to do the right thing by their employees. Employees who are undergoing a gender transition often have concerns that they may be rejected, belittled, and demeaned by not only co-workers but also by supervisors and even HR.
Transitioning employees typically approach their employers in a state of vulnerability. Just as the company will have questions about which bathroom or locker room the employee should use, so too will the employee. And just as the company will question and need to understand which name, pronouns, and dress code should be used, so will the employee. Letting the employee know – right away in the process – that the company is interested in not only following the law but also ensuring that the employee feels safe and accepted there, will go a long way in reaching the correct results for both the company and the employee and also a long way in avoiding legal claims.
For example, once an employee notifies of a gender transition, HR and others should consider contacting legal counsel to go over the laws discussed above; pull out any company policies that apply directly or indirectly to transgender employees (and create new ones if none yet exist); come up with a game plan that includes targeted dates; meet quickly and often with the employee to discuss what the company plans to do; and ask the employee what they are looking for.
A useful thing to say to the employee is that this situation will most likely be a learning process for all involved, including HR, supervisors, co-workers, outside vendors with whom the employee comes into contact, and even the employee themselves. Employers should mention that, in consultation with the employee about privacy issues, training will be done for various co-workers who regularly work with the employee, including education on what transgender status means, proper use of names and pronouns, and related issues. Mistakes may happen, such as a co-worker forgetting to use the proper new name or pronouns at first. True mistakes are not intentional harassment or discrimination, and all involved – including the transitioning employee – must understand that it is a new process for everyone. Explaining these issues to the employee with compassion is a big key to successfully handling gender transition in the workplace.
Walmart Liable for Denying Full-Time Job Coach to Employee with a Disability
Takeaway: The reasonable accommodation requirement of the Americans with Disabilities Act (ADA) may require an employer to provide a disabled employee with a full-time aide or job coach.
The 7th U.S. Circuit Court of Appeals upheld a jury verdict in favor of the Equal Employment Opportunity Commission (EEOC) on behalf of an employee with a disability who was denied the continued use of a job coach.
Beginning in 1998, the Walmart store in Beloit, Wis., employed a cart attendant who was deaf and legally blind and who experienced anxiety. He communicated via sign language, gestures and facial expressions. As a cart attendant, he retrieved shopping carts and flatbed carts from the parking lot, organized the carts and flatbeds near the store, assisted customers with transporting items, and loaded merchandise into customer vehicles.
The cart attendant worked at the Walmart for 16 years, during which time he had three job coaches. His first job coach was his foster mother, legal guardian and caretaker. Then, he had two job coaches who would alternate to provide coverage for him whenever he worked at Walmart.
In 2015, the Beloit Walmart hired a new store manager. Later that year, the shift manager told the store manager that the cart attendant and his job coach were fighting in the parking lot. The shift manager did not witness the alleged incident, and no one called the police or reviewed what had happened.
The store manager decided to observe the cart attendant at work and, after doing so, contacted his foster mother. He told her that the job coach was doing 90 percent to 95 percent of the cart attendant's job. He then suspended the cart attendant and told his foster mom to fill out paperwork as if he was a newly hired employee, including having a physician complete an accommodation medical questionnaire.
After the suspension, the parties had little communication for almost a year. In March 2016, Walmart sent the cart attendant a letter asking him to continue in the interactive process. But by then, the cart attendant and his foster mother had filed an administrative charge with the EEOC. The EEOC in turn decided to sue Walmart, alleging that Walmart violated the ADA by refusing to allow the cart attendant to continue to use a job coach and by ending his employment.
Walmart moved for summary judgment against the EEOC, asserting that the cart attendant could not perform the essential functions of his job and that full-time job coaches can never be reasonable accommodations. The district court denied the motion, and the case went to trial. The jury delivered a verdict in the EEOC's favor, awarding the cart attendant $200,000 in compensatory damages and $5 million in punitive damages, which the district court reduced to $100,000 to satisfy the statutory damages cap.
After the jury verdict, the EEOC sought equitable relief in the form of $41,224 in back pay, $58,125 in front pay, $4,496 in prejudgment interest, $19,097 for tax consequences and a three-year injunction against Walmart. The district court granted the monetary equitable relief but denied the EEOC's requested injunctive relief.
Walmart appealed the case to the 7th Circuit, and the EEOC cross-appealed the denial of the injunction. On appeal, Walmart argued that a full-time job coach is never a reasonable accommodation under the ADA, that punitive damages should not have been awarded because the theory of liability was novel, and that the district court should have bifurcated the liability and damages portions of the trial.
The 7th Circuit rejected Walmart's argument that a full-time job coach cannot be required as a reasonable accommodation. While the court noted that the ADA does not require employers to pay twice for the same work, it reasoned that the lawsuit did not require Walmart to pay for the job coaches provided. It found that the EEOC presented sufficient evidence to the jury that the cart attendant performed the essential functions of his job and the job coaches only provided limited assistance.
The 7th Circuit further found that it was not novel for Walmart to be required to provide a job coach, as a prior case decision required a school district to provide a permanent aide for a teacher with a disability. Finally, the court found that Walmart had waived any objection to having liability and damages decided at the same time at trial based on its prior agreement to this procedure.
The court similarly rejected the EEOC's request for broad injunctive relief that would have applied to other Walmart employees. It ruled that the district court did not abuse its discretion in rejecting this requested relief. The 7th Circuit thus upheld the jury verdict.
Gender dysphoria ruling creates accommodation requirement
Employers should expect an increase in employee requests to accommodate gender dysphoria after a federal appeals court held that a transgender woman with the condition is entitled to protection under the Americans with Disabilities Act.
The divided Aug. 16 ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, in Kesha T. Williams v. Stacey A. Kincaid et al., which overturned a lower court decision, was the first federal appeals court ruling on the issue.
While the case, which involved an incarcerated transgender woman, was not an employment-related ruling, it will nevertheless be applied to the workplace, experts say.
The 4th circuit covers Maryland, North Carolina, South Carolina, Virginia and West Virginia, but other appeals courts may issue similar rulings, experts say. They recommend employers examine their policies and training to be sure they are prepared to deal with the issue.
Gender dysphoria is defined as the “clinically significant distress” felt by some people who experience “an incongruence between their gender identity and their assigned sex,” according to the American Psychiatric Association’s Diagnostic and Statistical Manual, which is quoted in the ruling.
The U.S. District Court in Alexandria, Virginia, had dismissed the case filed by Ms. Williams, a transgender woman with gender dysphoria.
Ms. Williams, who was incarcerated for six months, alleged violation by prison authorities of the 14th amendment’s equal protection clause, violation of the ADA and negligence. She asked that the defendants provide inmates with gender dysphoria with “adequate and necessary” medical care as well as for compensatory and punitive damages, among other demands.
In the appellate ruling, the two-to-one majority opinion said the APA’s definition of gender disproval dysphoria reflects “a significant shift in medical understanding” and that Ms. Williams has “alleged sufficient facts to render plausible the inference that her gender dysphoria” resulted from physical impairments and is covered by the ADA.
The dissenting opinion said that accepting Ms. Williams’ allegations as true “does not require me to turn a blind eye to the plain language of the authorities on which Williams relies.”
The ADA excludes from the term disability any “gender identity disorders not resulting from physical impairments.”
Jakob F. Williams, an associate with Clark Hill PLC in Philadelphia, said the court looked “at all the medical and psychiatric developments of the last 30 years” and found “the idea of gender dysphoria can’t be included” in exclusions to the ADA.
The ADA became law in 1990 and was amended by the Americans with Disabilities Act Amendments Act in 2008.
District courts have ruled variously on the issue of ADA exclusion, and experts note the requirements for coverage under the ADA preceded the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County, which barred workplace discrimination based on sexual orientation or gender identity.
The 4th Circuit ruling was “very solid,” said George C. Morrison, a shareholder with Buchanan Ingersoll & Rooney PC in Philadelphia. “It will be interesting to see how it is now addressed in district courts, particularly those that have not addressed the issue,” he said.
However, Robin E. Shea, a partner with Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina, said, “I think the majority was incorrect in that gender dysphoria is one of the gender identification disorders that would be included in the exclusions under the ADA,” she said.
The ruling may prove influential, experts say.
“The 4th Circuit tends to be a little more conservative, so it may signal that other appellate courts will rule this way,” said Yvette V. Gatling, a shareholder with Littler Mendelson PC in Tysons Corner, Virginia.
Other say there is likely to be a split in subsequent appellate court rulings on the issue, and the issue may ultimately be decided by the U.S. Supreme Court, with congressional action another possibility.
In addition, states may already have laws that would cover these cases, said Jeanne Fugate, a partner with King & Spalding LLP in Los Angeles.
California’s Gender Non-Discrimination Act, which took effect in January 2012, for instance, protects employees from discrimination on the basis of “gender identity” and “gender expression.”
More employee accommodation requests can be expected, both within the 4th Circuit and other circuits, experts say.
Mr. Williams said employers should learn what terms such as gender dysphoria mean “and what accommodation requests might look like.”
United States: A Medical Condition Is A Medical Condition (and Could Be A Disability), Regardless Of Gender Identity
There is a carve-out to the Americans with Disabilities (ADA) that we rarely reference in our work with clients and that most employers have never used. It contains a list of what is referred to as sexual behaviors, including behaviors that everyone can agree are criminal—like pedophilia and voyeurism. The carve-out refers to such behaviors as "sexual behavior disorders." However, the carve-out also includes other language that some have argued excludes from the definition of a disability certain mental conditions recognized in the medical community that may be experienced by individuals who do not identify with their sex assigned at birth. The Fourth Circuit recently addressed one such condition—gender dysphoria—and held that it could qualify as a disability under the ADA. While the Fourth Circuit only covers a limited area of the country, and the decision did not involve an employment relationship, the decision and the court's reasoning may be instructive to employers in applying the nondiscrimination or failure to accommodate provisions of the ADA.
As noted, the underlying facts of this case have nothing to do with an employment relationship. Rather, the case involved an individual, Kesha Williams, who was sentenced to six months' incarceration. Although Ms. Williams was initially placed in a facility with other female inmates, prison deputies subsequently transferred her to a male facility once prison officials discovered that she is transgender. Ms. Williams alleged that the facility denied her treatment for the gender dysphoria she experienced, and that fellow inmates and prison staff harassed her and ignored her requests that they refer to her correctly as a woman. Further, Ms. Williams' requests for certain accommodations—to shower privately and for body searches to be performed by a female deputy—were consistently denied.
According to the World Professional Association for Transgender Health Standards of Care, gender dysphoria is "discomfort or distress that is caused by a discrepancy between a person's gender identity and that person's sex assigned at birth." Those suffering from gender dysphoria often benefit from medical treatment, including hormone therapy, which Williams had received for fifteen years prior to her incarceration.
When Ms. Williams' incarceration ended in May 2019, she challenged the treatment she received in the facility, alleging that the facility violated the ADA. Initially, the case was dismissed by a court in the Eastern District of Virginia, which held that exceptions in the ADA, which were added in 2008, precluded transgender individuals from protection by the ADA because being transgender, and, as a result, experiencing gender dysphoria, is "an identity disorder not resulting from physical impairment." Ms. Williams appealed the decision to the Fourth Circuit.
Fourth Circuit Holding
When it issued its decision on August 16, 2022, the Fourth Circuit—which has appellate jurisdiction over Maryland, North Carolina, South Carolina, Virginia, and West Virginia— became the first appellate court to hold that individuals experiencing gender dysphoria may be entitled to the protections of the ADA.
The central question addressed by the court was not whether gender dysphoria is a disability covered under the ADA. The decision focused on the interpretation of a carve-out in the ADA excluding gender identity disorder, along with "transvestism, transsexualism, pedophilia, exhibitionism, voyeurism," and "other sexual behavior disorders" 1 from protection under the ADA. The court noted the clear evidence of anti-transgender animus in the exception itself,2 which likens being transgender to being a pedophile, as well as in the legislative history, which documents the moral opprobrium directed at transgender people displayed by senators leading up to the adoption of the amendment. See generally Kevin M. Barry, Disabilityqueer: Federal Disability Rights Protection for Transgender People, 16 Yale Human Rts. & Dev. J. 1 (2014).
In finding that gender dysphoria may not be covered by the carve-out (and, as a result, may be covered by the ADA), the Fourth Circuit distinguished between gender identity disorder, which the American Psychiatric Association removed from the Diagnostic and Statistical Manual of Mental Disorders (DSM), and gender dysphoria. The latter had not yet been acknowledged by the American medical community when the ADA was passed. Gender dysphoria was later added to the fifth edition of the DSM (DSM-5) in place of gender identity disorder. "Put simply, while the older DSM pathologized the very existence of transgender people, the recent DSM-5's diagnosis of gender dysphoria takes as a given that being transgender is not a disability and affirms that a transgender person's medical needs are just as deserving of treatment and protection as anyone else's," Judge Diana Gribbon Motz wrote for the court.
In ultimately finding that gender dysphoria may be a disability protected by federal antidiscrimination law, Judge Gribbon Motz wrote, "Given Congress' express instruction that courts construe the [ADA] in favor of maximum protection for those with disabilities, we could not adopt an unnecessarily restrictive reading of the ADA." Judge Gribbon Motz went on: "Nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a 'gender identity disorder' excluded from ADA protection."
The Fourth Circuit additionally held that even if Ms. Williams' gender dysphoria and "gender identity disorders" were not categorically distinct, her gender dysphoria nevertheless falls within the safe harbor in the carve-out for "gender identity disorders . . . resulting from physical impairments." Aided by the Equal Employment Opportunity Commission's promulgated regulations defining the phrase "physical impairments" expansively as "[a]ny physiological disorder or condition . . . affecting one or more body systems, such as neurological. . . and endocrine," the court concluded that Ms. Williams had alleged sufficient facts to make plausible the inference that her gender dysphoria results from physical impairments. 29 CFR § 1630.2(h)(1).
What Employers Should Know
Although the circumstances of Ms. Williams' claims did not arise in the employment context, the Fourth Circuit's interpretation of the ADA's potential coverage of gender dysphoria applies equally to the employment context. Indeed, the Fourth Circuit's decision could have immediate and significant implications for employers that do not provide accommodations to or that discriminate against employees with gender dysphoria or similar conditions who work in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Further, although the decision only applies to states within the Fourth Circuit, other circuit courts may adopt its decision going forward.
The bottom line: Employees experiencing gender dysphoria or any other medical condition, regardless of their gender identity, may be entitled to the protections of the ADA if they can show that they are substantially limited in a major life function. This case demonstrates, once again, the expansive nature of the definition of a disability under the ADA and stands to caution employers who rely upon the phrase "gender identity disorder" to avoid providing reasonable assistance to their transgender employees who suffer from a medical condition.
- As with any other impairment or medical condition, an employee or former employee is still required to show that that they are substantially limited in a major life activity and are qualified to perform the job in question in order to access the ADA's protections.
- Title VII prohibits discrimination against individuals based on their sex, which courts have held includes gender identity.
Employee Arrests Outside of Work Hours: 4 Key Questions and Answers for Employers
When employees are arrested during their off-duty time and away from work, employers may need to make difficult choices balancing their various obligations. Among these are respecting the rights of arrested employees, ensuring the safety of workforces and workplaces, maintaining the continuity of business operations, and preserving brand integrity and corporate reputation—as well as considering how state and federal laws might relate to the conduct at issue and to any decision to retain, suspend, or discharge arrested employees. As with most things, process and risk assessment matter, and the way that decision-makers meet the moment may make the difference between an optimal outcome and an outcome that subjects employers to liability. Here are four questions and answers for employers weighing their options in these situations.
Question 1. When an employee is arrested outside of work hours, how can an employer know if it is permissible to discharge the individual?
Answer 1. How an employer responds to an individual arrest is most likely going to be controlled by state or local law. Almost all U.S. states have at-will employment, meaning that an employer may discharge an employee at any time, for any reason that is not prohibited by law, or when the at-will presumption has not been modified by contract. A limited number of states have laws that limit what an employer may do upon receiving information about an employee’s arrest. For example, the Wisconsin Fair Employment Act prohibits discrimination on the basis of arrest or conviction record. Within this law, there is a defense that may apply and allow an employer to respond if the arrest is substantially related to the circumstances of the particular job. Arrest record discrimination is a type of protected category that multistate employers operating in a state like Wisconsin may sometimes overlook. The details of a state law governing discrimination on the basis of arrest record will control what, when, and how an employer may respond if it learns of an employee’s arrest.
Federal law does not directly protect an individual from discrimination based on an arrest or conviction. However, arrest-related issues may still arise under federal law when a blanket policy related to arrests or an employer practice differs for some groups of employees. For example, if an employer always or consistently discharges employees upon news of an arrest, that policy or practice could have an effect where individuals of a certain protected category (e.g., race, national origin, gender, disability, or religion) are disproportionately excluded from employment opportunities. Similarly, if an employer in practice regularly gives one group of employees a warning for an arrest outside of work but establishes a pattern of terminating from employment another, protected group of employees, those circumstances could also give rise to a violation of federal law.
Q2. If an arrest occurs outside of an employee’s work hours, does the nature of the alleged underlying conduct (e.g., violent or nonviolent) that gave rise to the arrest affect the analysis or scope of the employer’s options under consideration?
A2. The answer here largely depends on the applicable state or local law that prohibits discrimination based on an employee’s arrest or arrest record. Generally, the state laws that apply to these types of circumstances permit an employer to take action if the conduct leading to the arrest is related to what the employee does on the job. For example, a bank would likely be able to discharge or exclude from a teller position an employee arrested for theft, even in those states that prohibit discrimination based on an arrest. Where the relationship between the job and the alleged criminal violation at issue is less obvious, however, a closer examination of the employee’s job duties and the employer’s business necessity may be warranted.
Q3. How or to what extent does the potential for reputational harm to the business factor in to an employer’s decision about whether to discharge, suspend, discipline, or refrain from taking adverse action with regard to an arrested employee?
A3. This is often part of the balance that any business will likely have to take into account when deciding how to respond to news of an arrest when a state or local law protects employees on the basis of arrest record. An employer presented with news of an employee’s highly publicized arrest for a controversial crime may, in the totality of the circumstances, determine that the risk of a legal claim arising from the employee’s discharge is outweighed by the risk of reputational harm arising from the public’s reaction to learning that the employee continues to be employed. Ultimately, having weighed all other relevant considerations (e.g., workplace safety), the employer assessing the risk to its reputation has to decide if the employment liability risk or the potential for public relations harm presents the greater risk.
Q4. What other options, short of employment termination, might exist for an employer that is considering not discharging an arrested employee?
A4. This assessment is highly dependent on the circumstances. In some cases, if local law allows it, an employer might consider imposing a suspension pending the results of the criminal system’s processing of the arrested employee. In the right circumstances, that option may mitigate the public relations risk or harm to employee morale until there is some clarity about the outcome of the criminal proceedings.
10 terms to know about diversity, equity, and inclusion workplace policies
Increasing awareness of systemic and social inequities has spurred many Americans to take a hard look at the deeply rooted causes of discrimination and bias toward members of marginalized communities, including in the workplace. In recent years, companies have placed more emphasis on implementing diversity and inclusion initiatives.
To highlight how diversity policies are communicated in the workplace, JobSage compiled some of the most common terms found in the diversity, equity, and inclusion policies of dozens of companies ranging from nonprofit organizations to service and technology businesses.
While companies are increasingly understanding the importance of hiring and retaining employees with diverse backgrounds and experiences, there's still a long way to go. Some companies have faced backlash and researchers have found that employees from overrepresented groups can react with hostility when diversity training is introduced. Research has shown this is a common reaction as traditionally advantaged groups are often initially resistant to the belief that they received advantages.
Meanwhile, nearly 25% of Black and Hispanic employees in the U.S. reported being discriminated against at their jobs, according to a 2020 study by the Gallup Center on Black Voices. The study also found that 3 in 4 Black employees said the discrimination they experienced was race-based. When it comes to leadership in the corporate workplace, Asian Americans are less likely than other racial groups to be advanced to management positions, per Harvard Business Review research. Latino and Hispanic Americans comprise 18% of the workforce but only 4.3% sit in executive roles, according to the Hispanic Association of Corporate Responsibility.
Many companies have introduced inclusivity policies to build office cultures that support the success of employees from all backgrounds—and the business itself. Deloitte reported that over a three-year period, companies with diverse teams had a significant increase in cash flow—2.3 times per employee. The research also identified key impact practices: View talent as an asset rather than just a cost and create and nurture an understanding of the employees from a qualitative perspective.
Understanding DEI is critical to introducing inclusive policies that can bring strength to the organization in terms of adaptability, innovation, and unique perspectives to the table. Read on to learn about some of the most common terms used to describe these policies.
Diversity in the workplace refers to the presence of employees who have differences that may include race, gender, socioeconomic status, nationality, abilities, and more. Many often think of diversity in terms of characteristics that are noticeable, such as race, body size, or age. But the term encompasses other unseen differences that could include religion, sexual orientation, and cultural values. Having coworkers with varying backgrounds enriches a workplace, and organizations can implement mentorship programs and establish relationships with universities to grow a diverse pool of candidates during their recruiting process.
Equity is promoting more fair approaches within internal systems as well as in the way access, opportunities, and resources are distributed. When a workplace's processes and procedures promote fairness and justice, all employees benefit. Understanding the underlying systemic biases in our social institutions is critical to identify which workplace procedures may be contributing to disparities in outcome and accessibility—and how to address them.
Equity is different from equality; with the former, companies will recognize each individual's resources and privileges. Employees with less access to these may need more support that acknowledges specific barriers. This can mean prioritizing wage equity, systemic changes to remove barriers to advancement, and giving equitable promotions. Equality provides all employees with the same opportunities or resources regardless of barriers they may face.
An inclusive work culture ensures each team member feels valued and respected. It also supports employee success and well-being by offering a welcoming work environment that provides a sense of belonging. To make strides in integrating more workplace inclusion, organizations should value different perspectives, which generally begins with the hiring process. A hiring manager must be cognizant of biased hiring patterns. Often, hiring managers recruit who they think will fit in with the other team members, rather than who they think will add to the team.
However, inclusion involves not only hiring job candidates with different backgrounds, but also ensuring these staff members have a pathway to promotion and senior-level roles. An inclusive culture also creates a welcoming space for everyone to share ideas.
Race refers to a group of people who may share similar physical characteristics such as skin color. The concept of race came about in the 1700s when "racial classification schemes provided the most powerful framework for understanding the divide between white and black."
Although theories of race at that time were erroneous, it still remains etched in the American psyche.
In the modern workplace, progress has been lacking in terms of equal salaries across race, gender, and sexual orientation. Although companies outwardly agree that diversity is important, women and minorities are still underrepresented when moving up the ranks, as white men continue dominating top executive and leadership positions at many organizations.
Ethnicity is defined as a group of people who identify with and share common cultural, social, and ancestral experiences. Often, ethnicity is self-defined whereas race is defined as a group of people who share the same physical features.
Ethnicity differs from race in that it acknowledges language and cultural differences between people. Ethnicity embodies social, political, and economic constructs.
Intersectionality is the acknowledgment or framework for understanding experiences regarding discrimination against race, class, gender, or sexual orientation.
For example, in the U.S., women generally earn 83 cents for every dollar a man makes. However, the amount changes when you factor in another identity: Black women earn 64 cents for every dollar a white man makes. This example of intersectionality shows how a gender issue also becomes a race issue. Systemic discrimination and exclusion cannot be solved by homing in on a single issue, but rather by examining and understanding the different forms and layers of oppression that various individuals face.
To function efficiently as a team, it's important that employees learn to work with people from myriad backgrounds. This means employees must learn cultural tolerance when interacting with coworkers.
Diverse backgrounds and perspectives can result in an occasional misunderstanding, so it's important that employees know how to handle this. Some methods of fostering cultural tolerance can include encouraging collaboration and conversation so everyone feels like their differences are respected. Welcoming and acknowledging ideas and differences of opinion is also critical. This doesn't mean that all suggestions need to be accepted, but the employee will feel more comfortable if they know their ideas are at least being considered and not dismissed or ridiculed.
Advocacy and allyship
Everyone's input in the workplace is required for creating a diverse and inclusive work culture. This can be done by assessing and asking for feedback on workplace culture from team members in person or through anonymous surveys.
This can also mean that managers need to take more initiative to advocate for employees who may not be in a position to do so for themselves. Promoting pay equity, providing equal opportunities for promotions, and standing up for employees who express concerns about harassment, unfair treatment, or other discrimination in the workplace.
It also entails being open to differing opinions, having an open mind about employees' communication styles, handling conflict, and identifying obstacles within the organization that block steps toward a more diverse, equitable, and inclusive work culture.
Any form of harassment can make someone feel very uncomfortable. Harassment in the workplace however takes on many forms, whether it's bullying, microaggressions, or blatant discrimination.
In recent years, the #MeToo movement has shed light on sexual misconduct and other incidents of harassment in the workplace, prompting employers to focus on workplace anti-harassment and bias training.
The rise in remote work due to the pandemic hasn't eased the number of workplace harassment cases. Teams can now take a virtual peek into their coworkers' homes, intimate details that they likely didn't have access to previously. Remote harassment can refer to inappropriate language or microaggressions online.
Among remote workers, 1 in 4 expressed unwelcomed sexual behavior since the start of the pandemic, according to a 2021 survey conducted by learning management system TalentLMS, a learning management system, and nonprofit The Purple Campaign. The behavior took place via videoconferencing calls and internal chat programs.
The Department of Labor procedures encourage prompt reporting and remedying of workplace harassment. After filing a harassment claim to the employee's human resources department, the claim is evaluated, and a decision is made regarding disciplinary action.
Implicit bias refers to stereotypes, attitudes, or unconscious bias that someone may have against a person or group. This can lead to unfair decisions that can hinder a person's intentions or choices regarding who gets hired or promoted. Unconscious bias isn't illegal; however, employment discrimination is illegal.
Employment discrimination happens knowingly whereas implicit bias occurs without us being aware of it because it is usually learned behavior over time. Implicit bias can manifest in ways that can negatively affect the team or company overall. If left unaddressed, this can lead to tension whether in the office or over Zoom.
There are various tools to tackle implicit bias such as unconscious bias trainings, as well as listening to employees and encouraging them to express their opinions and concerns. It's also important to avoid stereotypes and to be mindful of how your thoughts and emotions may be based on previous experiences, instead of the person or situation at hand. If employers only hire people who think or look like them, this can reaffirm biases, affecting team morale and productivity.
Workplace diversity programs often fail, or backfire
Diversity and anti-harassment training is a booming industry. International company surveys suggest the number of people hired for jobs with “diversity” or “inclusion” in the title has more than quadrupled since 2010. Attempts to reduce discrimination and harassment in the workplace are laudable, and make good business sense. But only if they work.
Unfortunately, the consensus now emerging among academics is that many anti-discrimination policies have no effect. What is worse, they often backfire. Some among them suspect the reason many interventions nevertheless remain popular is a hidden motive: that they are used not to reduce discrimination, but to shield against litigation.
Successful anti-discrimination programmes should, for instance, help make firms’ management less male and pale. For a forthcoming book, Frank Dobbin and Alexandra Kalev tested this proposition. They collected data on anti-discrimination training programmes and targeted grievance procedures at 829 American companies implemented from 1971 to 2002, and how they affected the representation of ethnic groups and genders in management up to 2015. They found that most did the opposite of what one might expect. On average, 20 years after these interventions were introduced, the group that benefited most were white men.
What about the short-term? One large experiment compared the effects of eight one-time interventions to reduce unintentional biases, such as reading a vivid story with a black hero and a white villain. Among 6,321 non-black Americans, all reduced implicit bias favoring white over black people immediately after. But when retested one to five days later, the effects of all interventions had faded. Statistically speaking, the effects of all but one were nil.
Yet some programmes worked well. Mr Dobbin and Ms Kalev found that cultural-inclusion training, with an emphasis on how managers could increase their teams’ productivity with a more varied crew, was linked with greater diversity among higher-ups later on. Targeted recruitment, mentor programmes, and cross-training between groups, were also found to help.
This is in line with a recent study by Oriane Georgeac and Aneeta Rattan, who found that atypical candidates feel less likely to be included when given a company statement with a business case for diversity instead of one with a simpler acknowledgment of its importance. They suggest explicit rationales make some suspect they will be judged based on stereotypes—rather than how they do their job.
You can forgive firms their initial eagerness to implement programmes of unproven effectiveness. In global surveys, 75% of them now say diversity is a stated value or priority. But if they mean what they say, such firms should now be shifting resources, away from programmes that do not work (or worse) and towards those that do.
But it could be, at least in America, that the courts will need to move first. Many employers may be motivated to institute diversity policies less by productivity or morality than by legal liability. In a study of 1,188 federal civil-rights opinions decided between 1965 and 2014, Lauren Edelman, a researcher, found that judges increasingly considered such practices evidence of compliance with civil-rights laws, regardless of effectiveness. If judges start paying more attention to which programmes work, it may force firms to do so too.
AARP National Survey Reveals Close Link Between Discrimination and Working Women’s Financial Health
Two Thirds of Respondents Say They Experience Work-Place Discrimination that Impacts Their Earnings Potential
WASHINGTON— In its annual survey, Mirror/Mirror: Women’s Reflections on Beauty, Age and Media™ AARP reveals that women of all ages experience work-place discrimination regularly, and that discriminatory practices at work impact their earning potential as well as their financial health.
According to the study, discrimination is a real and common occurrence for most American women as they are treated differently due to their gender, age, race, ethnicity and/or skin tone, as well as their weight. In addition to suffering other forms of discrimination, women ages 50 and up experience age discrimination, as many appear to be deemed “too old”. In fact, while 62% of working women age 18+ reported experiencing age discrimination, a whole two thirds (66%) of working women 50+ reported being subjected to age discriminatory practices, says the survey.
“Every day, the financial security of too many women is impacted by acts of discrimination in the workplace. It is crucial that we eliminate barriers and ensure equality in pay and benefits for women,” said Yvette Peña, AARP Vice President, Audience Strategy in the office AARP Office of Diversity Equity and Inclusion. “Discrimination in the workplace – based on gender, age, ethnicity or any other characteristic –is unacceptable,” she added.
According to the data, 57% of women 18+ have been overlooked, disrespected or devalued by a customer or colleague while at work; 42% have been passed over for a raise, promotion or chance to get ahead at work; 38% have been told to behave a certain way at work; 29% have been excluded from projects or meetings at work that would have helped them advance in their career; and 23% have been unfairly fired from a job or not been hired due to an unfair hiring practice.
AARP’s Mirror/Mirror™ survey also shows the top reason among women 50+ who experience discrimination “at least sometimes” is age (48%), while for those age 18-49, race/ethnicity/skin tone is the most prominent source of discrimination (54%). Women under 50 have often felt treated unfairly for “being too young,” while older women have felt disrespected for “being too old.”
The survey shows that while experiences of discrimination may vary, women who experience discrimination regularly adapt to it in similar ways. For example, 74% closely observe their surroundings, 58% carefully watch what they say and how they say it, and 51% consider feelings of safety and comfort in their everyday interactions.
BLM Messaging on Face Masks in the Workplace
Q: Have any courts addressed a company’s ability to regulate the type of masks that employees wear at work?
A: At the height of the pandemic and after the death of George Floyd in June 2020, many employers grappled with whether they could and should regulate the type of face masks worn in the workplace. The appellate courts for the First and Third circuits recently addressed this issue, reaching different conclusions. The First Circuit ruled that an employer is permitted to discipline employees for wearing Black Lives Matter (BLM) face masks in the workplace in violation of its dress code. In a Third Circuit decision, the court enjoined the employer from enforcing a dress code policy, banning employees from wearing BLM face coverings. The differences in outcome can be attributed mainly to the fact that the employer in the First Circuit case was a private employer, and the employer in the Third Circuit case was a public employer.
First Circuit Decision
Employees sued a private supermarket, claiming that the company discriminated against them under Title VII when it disciplined employees, both Black and white, for wearing BLM face masks.
The supermarket’s dress code policy prohibits employees
from wearing clothing that advertises noncompany-related messages, slogans, and logos. Before the pandemic, the policy largely was unenforced. That is, many employees had previously worn clothing that bore the logos of sports teams and other political/social messages without being disciplined. After the death of George Floyd in June 2020, some employees wore BLM masks at work as a part of a larger movement to demand better treatment of Black employees.
It was only after employees began wearing face masks with BLM messages that the supermarket began to enforce the dress policy prohibiting noncompany-related messages on clothing, disciplining workers who refused to remove their masks. Those employees sued, claiming the market’s enforcement of its dress code policy violated Title VII’s prohibition against race discrimination and retaliation.
The district court ruled that the employees failed to state a Title VII discrimination claim because the dress code was applied consistently regardless of an employee’s race. Likewise, the court held that the plaintiffs did not state a claim for retaliation because, while they claimed to wear the BLM face masks to support Black employees and racism in general, they could not point to an unlawful employment practice of the supermarket under Title VII.
The First Circuit affirmed the district court opinion on somewhat different grounds. According to the appellate court, the fact that both Black and non-Black employees were disciplined for wearing BLM masks did not undercut the discrimination claim. As the court stated: “If an employer discriminates both against Black employees based on their race and non-Black employees based on their status as non-Black people associating with Black people, that employer doubles rather than eliminates Title VII liability.” The court concluded, however, that the supermarket had an “obvious alternative explanation” for prohibiting the masks other than the plaintiff’s allegation that it was targeting employees because of their race — the supermarket wanted to prohibit the mass display of a controversial message in its stores by its employees. The court also found that the plaintiffs’ retaliation claim failed because there was no causation between the supermarket continuing to enforce its dress code policy and the employees’ wearing of masks to protest that discipline.
Interestingly, the court noted that because the supermarket was a private employer, the employees could not assert a claim based on the First Amendment.
Third Circuit Decision
Analyzing a public employer’s policy on First Amendment grounds, the Third Circuit recently reached a different result. In that case, employees of a public transportation company alleged that their employer violated their First Amendment rights by implementing a dress code that restricted employees from wearing BLM masks. In July 2020, the company expanded its ban on employees wearing political/social protest buttons to include face masks. Notably, the political/social protest button policy had not been enforced previously when employees wore buttons supporting local and national political campaigns. In September 2020, the company revised the dress code policy further to detail what masks were proper to wear at work. The policy prohibited employees from wearing masks with any visible logos (besides the company or union logo), images, texts, etc.
Both the company and the employees’ union moved for a preliminary injunction. The district court granted a preliminary injunction, preventing the company from enforcing its mask ban, and the company appealed. The Third Circuit affirmed the district court opinion, finding that the transportation company was unlikely to succeed on the merits, and the union was likely to succeed on the merits.
First, the court noted that speech by government employees receives less protection than public speech. To be protected, the employees must speak as “citizens” and not as part of their official duties, and they must speak on matters of public concern. The court found that these two threshold requirements had been met here. The court next looked to whether the employer could show that the company’s interest in promoting the efficiency in the public services it performs was outweighed by the employee’s interest as citizens in commenting on matters of public concern. The court found that the company’s argument failed because the masks bore messages relating to matters of public concern on which the employees had a strong interest in commenting, while the company could demonstrate only a minimal risk that the employees’ masks would create a workplace disruption. Of importance to the court was the fact that the company had not enforced its prior ban on buttons, stating social and political causes and the employees’ conduct in wearing such buttons did not disrupt operations.
For private employers that wish to limit employee messaging on attire at work, it is important for companies to draft policies that do not differentiate between different types of messaging and to enforce those policies equally regardless of race or any other protected category. Public employers must give consideration to First Amendment free speech concerns and ensure that their dress codes are narrowly tailored to real harm.
‘Muslim culture’ is routinely blamed for lower levels of employment – but my research shows this is not what is behind the problem
People who identify as minority ethnic are at a disadvantage in the labour market compared to the British white majority. They are more likely to earn less, be outside of the labour force, be unemployed and remain unemployed for longer.
Research also shows that Muslims are worse off than any other religious group relative to white British Christians. Academics refer to this fact as the “Muslim penalty”. Importantly, the Muslim penalty remains even after accounting for factors that are likely to affect employment, such as education, age, region of residence, English language proficiency and health.
The ‘cultural norms’ argument
The existence of a Muslim penalty does not in and of itself indicate that discrimination is taking place. Some therefore argue that so-called “cultural norms” are at play – that Muslims, and particularly Muslim women, are less likely to be working because the values of their own communities hold them back. These purported norms include a unique “taste for isolation” and a commitment to “traditional gender roles”.
But investigating a decade of data from the UK Household Longitudinal Study – one of the largest surveys of its kind, which gathers information on the socio-economic situation and cultural contexts from around 100,000 people – I did not find this view to be supported by the evidence.
By using information on people’s religious beliefs, membership in social organisations, and the extent to which they agreed with statements such as “Husband should earn, wife should stay at home”, and “Family life suffers if mother works full-time”, I was able to account for a range of attitudes in my study.
If “cultural norms” are really so important then we would expect the Muslim penalty to be substantially reduced – if not completely disappear – after taking them into account. Yet, adjusting for this information did not reduce Muslim men and women’s comparatively high likelihood of being unemployed or inactive in any significant way.
In other words, my study found no association between so-called “socio-cultural attitudes” and the likelihood of Muslims being unemployed or inactive.
What then is driving the Muslim penalty? Survey analysis like mine cannot prove discrimination is at play, but my findings lend support to the overwhelming evidence from field experiments that suggests discrimination is a significant barrier to Muslims looking for work – even if it is not the only driver of such disparities.
A growing body of evidence
Findings from field experiments – generally taken as the gold standard for establishing whether discrimination is at play – provide strong evidence that discrimination in Britain contributes to differences in employment outcomes.
For example, a 2019 study examining employer behaviour towards Muslim job seekers across five European countries, including the UK, found high levels of discrimination. One of the study’s findings was that Muslims who disclose their religion to employers experience a lower callback rate, but Christians from the same country who disclose their religion do not.
This is persuasive evidence that the discrimination is targeted at Muslims, and is not an uneasiness with religion in a general sense. Another study has shown that even in cosmopolitan London candidates with a Muslim name secure three times fewer job interviews compared with those with Christian-sounding names.
Evidence of racist and prejudicial attitudes in Britain and the continued vilification of Muslims in the media lend further support to the discrimination thesis. Importantly, it’s not only the white majority who harbour anti-Muslim feelings. Research shows that Muslims are also “singled out for unique hostility from (…) other minorities”.
While subscribing to racist beliefs does not necessarily translate into action, suggesting that holding such views doesn’t influence a person’s behaviour, for example, in their hiring decisions, implies that employment is negotiated outside the social environment in which it operates. This is not a plausible assumption.
When all the evidence is analysed in combination, it is difficult not to see that discrimination plays an important role in bringing about the Muslim penalty.
The consequences of ignoring the facts
The argument that Muslims’ “problematic norms” hold them back appears to be more of an ideological position than one supported by evidence. It trivialises the reality Muslims face in the world of work and fails to acknowledge the complexities of how racism operates – which in turn delays efforts to improve the situation.
Poor labour market outcomes affect multiple aspects of a person’s life. Among other things, they affect what people can afford to eat, where they can afford to live, the education they and their children can access, as well as their physical and mental health. Delaying work to tackle anti-Muslim discrimination in the British labour market therefore reinforces a range of inequalities that extend well beyond the world of work.
The Conversation about Workplace Diversity We Should Be Having
A workplace in which employees at all levels are communicating more efficiently and more clearly is both happier and more productive.
Reports of bias in today’s work environment are alarming. A 2019 Harvard Business Review study “surveyed over 16,000 employees in 14 countries around the world to see what obstacles they face” and described "pervasive, day-to-day bias," adding that "[h]alf of all diverse employees stated that they see bias as part of their day-to-day work experience."
As part of an effort to reduce such incidents, many large companies, as well as a substantial number of medium-sized ones, have incorporated diversity training into their workplaces (where diversity is considered along the lines of one’s race, ethnicity, gender, sexual orientation, etc…). As the authors at Deloitte Insights wrote in 2017, Over two-thirds (69 percent) of executives rate diversity and inclusion an important issue (up from 59 percent in 2014).
Without in any way disparaging the importance of those efforts, it is worth reflecting for a moment on whether companies and organizations should also think about the perspectives of their employees who may question the exclusive emphasis on this particular way of thinking about diversity.
At its core is the question of how we think about identity and which aspects of who we are define us. Some of us give primacy to the commonly understood dimensions described above (sometimes called “ascribed” characteristics, which include race, ethnicity, gender, sexual orientation, etc…), while others of us focus more on characteristics based on our interests or on what we’ve earned throughout our lives (sometimes referred to as “achieved” characteristics, where an example might be someone who thinks of himself primarily as a Star Wars-loving poet). However, this variation is drowned out in the larger push for a dominant concept of self.
How we think about identity shapes how we interpret interactions including, or perhaps especially, those in the workplace, where many of us spend much of our waking time. While the desire to avoid the issue is understandable given its politically charged nature, a lack of recognition that some people conceptualize identity differently has tangible repercussions. Returning to the example at the outset, perceptions of bias and how we think about identity are often linked.
Assumptions in Social Interaction
Sometimes when interpersonal interactions go sideways, one party feels the other is acting in a racist or sexist manner. Of course, in some of those situations, racism and/or sexism are indeed present. However, in some other incidents, one party implicitly assumes (sometimes leading to great frustration) that the other sees events unfolding in the same way they do. Yet, variation across individuals in how we conceptualize identity suggests this isn’t always true. These contrasting visions can lead one person to conclude bias is present, while the other sees (and may intend) none.
Although little representative survey data on perceptions of bias are available, we can look to a different source: bias response team reports. Although bias response teams are based in the on-campus, rather than the corporate, experience, they are useful because students don’t remain students indefinitely.
At the University of Illinois at Urbana-Champaign (UIUC), this team is referred to as the Bias Assessment and Response Team (BART).
The team collects reports of bias-motivated incidents that impact students; Supports those impacted by bias; Provides opportunities for educational conversation and dialogue; and Publishes data (without personally identifiable information) on reported incidents.
While the University of Illinois is not unique in relying on this type of team to track and respond to bias episodes on campus, they are somewhat distinct in that they provide three years of publicly available reports that include brief descriptions of each incident.
Reading through the three years of reports reveals interesting patterns. Unsurprisingly, a wide range of instances is described. Although some border on the absurd (“An anonymous person reported that they were called a crazy Norwegian and told, ‘Uff-dah, Olga dance’ and had a cabbage thrown at them”), others indicate that some students are indeed still subject to racial slurs and epithets (“An anonymous reporter said that a white male yelled ‘N*****’ at his friend”).
Bias in the Workplace
If the majority of reported incidents were similar in nature to the latter example, one might reasonably conclude that there’s little cause for concern over our definition of bias. However, a substantial portion of the incidents involves a more expansive definition that raises questions. These include complaints about what can reasonably be considered an opposing point of view on a controversial topic (Example A) and allegations of bias in incidents where it is just one of multiple reasonable interpretations (Example B).
Example A: An anonymous person reported that a speaker brought to campus by an RSO was offensive to non-US citizens by saying things like, "America is the greatest country in the world" and "pull yourself up by your bootstraps."
Example B: A student reported that he was treated poorly by two teaching assistants during office hours and believed this treatment was racially motivated.
A back-of-the-envelope tally suggests that as many as half of the reports in the 2015-2016 year, one third in the 2016-2017 year, and slightly under half (45 percent) in the 2017-2018 year may fit this description. While some may view such utterances as being in poor taste (Example A) or they may lament the potentially rude behavior of the teaching assistants (Example B), neither necessarily involves bias.
Without taking a position on the situations described in these examples, they raise certain concerns. In the workplace, where some people adhere to the dominant version of identity and others do not, communication can become strained. Honest conversations about this variation—essentially diversity in how we think about diversity—have remained elusive. However, open dialogue on this topic is not out of reach if we make it a priority. These are conversations that can and should be had. A workplace in which employees at all levels are communicating more efficiently and more clearly is both happier and more productive.
CROWN Act: Does Your State Prohibit Hair Discrimination?
Octavia Goredema is a career coach and author who has distinguished herself as a go-to source for underrepresented professionals looking to advance their careers.
She's coached leaders at renowned companies including Google, Nike, American Airlines and Dow Jones. Her insights have been featured in CNN, Forbes and The Los Angeles Times, and she has co-hosted and produced "HBR Now," Harvard Business Review's weekly show on leadership.
But early in her career, Goredema often faced a form of discrimination that many other Black women also experience.
"Prior to becoming a career coach and author, there were occasions where I've had to handle unsolicited comments or suggestions about my hair in the workplace," said Goredema, who has worn her hair in braids for many years. "Unconscious racial basis isn't always vocalized. It can be subtle, which doesn't diminish the impact."
Black women are 30 percent more likely than other women to receive a formal grooming policy and to be sent home due to their hairstyle in the workplace, according to a 2019 study by personal care company Dove.
In 2019, Dove partnered with social justice organizations National Urban League, Color of Change, and Western Center on Law and Poverty to launch the Creating a Respectful and Open World for Natural Hair (CROWN) Coalition.
This alliance aims to create a more equitable and inclusive experience for Black individuals through the advancement of the CROWN Act—a law that prohibits discrimination based on hair texture and hairstyles.
Which States, Localities Have Enacted the CROWN Act?
In January 2019, California became the first state to introduce the CROWN Act. Gov. Gavin Newsom signed it into law on July 3, 2019.
The inaugural CROWN Act expanded the definition of race in the Fair Employment and Housing Act and state Education Code to ensure protection against hair discrimination in workplaces and in K-12 public and charter schools.
Since then, the legislation has galvanized support from federal and state legislators. Federally, the U.S. House of Representatives passed the CROWN Act in March. The bill now sits with the Senate. President Joe Biden has indicated he would sign the federal CROWN Act into law.
As of August 2022, 18 states have enacted the CROWN Act into law and more than half of all states have filed or prefiled legislation for consideration. About 1 in 10 states have yet to formally examine the CROWN Act.
More than 40 local areas have enacted the law, including the U.S. Virgin Islands. Municipalities like Ann Arbor, Mich.; Austin, Texas; Charlotte, N.C.; Cincinnati; and Tucson, Ariz., have passed the CROWN Act, even though their states have yet to do so.
Lauren Baker, global brand manager for Dove, said hair discrimination cannot truly end until there is a national law.
"The CROWN Act is important to ending hair-based discrimination so people can thrive and celebrate their own beauty," Baker said. "Unfair grooming policies have a disparate impact on Black women, men and children, and the CROWN Act aims to end cultural and racial discrimination taking place within workplaces and schools."
Fast Facts About Hair Discrimination
Black hair is often a representation of history and carries deep emotional significance, according to the NAACP Legal Defense Fund. Cornrows, locs, twists, afros and bantu knots have historic connections to Black pride, culture, religion and history.
However, that hasn't prevented Black adults, schoolchildren and members of the military from experiencing hair discrimination. According to Dove, Black women are:
- Often pressured to conform to Eurocentric standards of appearance.
- 80 percent more likely to change their natural hair to meet social norms or expectations at work.
- 83 percent more likely to report being judged more harshly on their looks.
- 1.5 times more likely to be sent home or to know of a Black woman who was sent home from the workplace because of her hair.
- Consistently rated lower or "less ready" for job performance based on their hairstyle.
Four Ways Hair Bias Shows Up In The Workplace
When striving to create a workplace that is equitable and justice-oriented, it’s important to examine unique forms of oppression that different communities face to develop interventions that address workplace harm. One pervasive issue that doesn’t receive enough attention is hair discrimination and the specific ways that this type of bias manifests in the workplace. The bias that is faced when it comes to Afro-textured hair and Afrocentric/Black hairstyles is a product of an anti-black system. The term “Black hair” in this article will be used to refer to both Afro-textured hair and Afrocentric/Black hairstyles. This article seeks to explore four ways that hair bias shows up in the workplace and provides suggestions for creating a more equitable workplace for all.
1. Discriminatory policies. Many workplaces have specific policies about professionalism and appearance expectations that can cause disparate impact, or unintentional discrimination, for Black employees. Grooming policies that include vague requirements about “professional” hairstyles must be updated to specifically outline what hairstyles are acceptable (and why). It’s important to keep in mind that leadership and customer preference is not a valid justification for prohibiting Black hair. If you have an employment policy that restricts a hairstyle like braids, for example, is there a valid reason why braids would prevent an employee from successfully completing their job duties? Have an equity consultant evaluate employment policies and practices periodically to ensure that they are not unintentionally discriminating against a population of your workforce.
2. Hiring bias. Black hair can trigger an individual’s unconscious bias and make a job candidate less desirable to employers. Unsurprisingly, Black women with Black hairstyles received negative ratings when applying for jobs, according to a 2020 research study. Throughout the decades, there have been a plethora of cases where job candidates were denied employment because of Black hairstyles, including the recent cases of Jeffrey Thornton and Chastity Jones. Employers must ensure that hiring practices are objective and anti-racist, and that tools like rubrics or scorecards are utilized during the hiring process. There is still a gap in understanding when it comes to Black hair discrimination—hiring professionals should also receive education about Black hair discrimination and the ways it can manifest in the workplace.
3. Microaggressions. In addition to discriminatory policies and the unconscious bias that creeps into the hiring process, Black employees also experience microaggressions related to their hair. Before the pandemic, Black employees experienced being asked by non-Black employees if their hair could be touched. Even in a remote workplace setting, these racial microaggressions continue. Black employees may be asked questions about a new hairstyle they are rocking or interrogated about whether their hair is real. It is not often considered how these sorts of questions can make a person feel othered and dehumanized—these inquiries are rarely asked to non-Black colleagues. Microaggressions workshops must be provided and should include an exploration of Black-hair-related microaggressions and how they impact employees on the receiving end.
4. Inequitable treatment. A hairstyle deemed “too Black” can not only thwart a person’s likelihood to be hired, but the discrimination continues once an employee is hired into a workplace. Black employees who change from a more “professional” (read: white/Eurocentric) hairstyle to a Black hairstyle find that they can experience inequitable treatment from both leadership and peers. In addition to hiring biases, some employees have been fired for their Black hair. There are several cases which further illustrate this including the stories of Brittany Noble Jones and Imani Jackson. It’s easy to hide one’s discrimination behind the guise of poor performance. Performance evaluation processes should be as impartial as possible. Similar to the tools utilized during hiring interviews to make the process more equitable, performance evaluations should include objective practices like calibration and employee scorecards. If Black hair somehow violates workplace policies, there should be a bona fide occupational reason that the policy is in place. It is important that employers are educated about legislation like the CROWN Act, which provides state-wide protections against race-based hair discrimination.
5 Anti-Racist Hiring Practices Every Workplace Should Adopt
Wells Fargo recently found themselves in hot water after it was reported that some managers at the company were interviewing non-white candidates for jobs that had already been filled. The company announced that starting Aug. 19 it would re-institute its diverse hiring practice, with some changes.
Wells Fargo is one of the more notable organizations that has such a policy but many corporations have implemented performative practices in an effort to gain “diversity clout.” The NFL has a similar policy currently in place called the Rooney Rule. The Rooney Rule was created as a way to increase diversity amongst NFL coaches and requires NFL teams to interview ethnic minority candidates for coaching and front office positions.
Despite any good intentions behind the creation of the policy, which was introduced in 2003, some have called the Rooney Rule a failure. Brian Flores is a former NFL coach that has filed a lawsuit against the NFL, citing racial discrimination against Black coaches. Flores claims that the NFL engaged in phony interviews without intentions to hire non-white candidates. There may be validity to these claims given the fact that the majority of NFL head coaches are white. Many organizations and institutions implement policies to increase representation but fail to achieve desired outcomes. Some have suggested a pipeline problem—but the pipeline isn’t often the issue. This article provides five anti-racist hiring practices that every workplace should adopt.
1. Ditch referral hiring programs. Referral hiring programs often recreate the same homogeneity that workplaces are trying to escape. Standard referral hiring programs are likely to be impacted by nepotism, the halo effect, and the affinity bias. Ditch the referral programs and invite employees to help with increasing representation. Put out a call to action encouraging employees to recommend job candidates from underrepresented and historically excluded backgrounds to interview for open roles.
2. Representation among hiring committee. According to Zippia.com, approximately 62% of recruiters in the U.S. are white. Zippia.com also reports that nearly two thirds of human resource managers in the U.S. are white. Having more representation among those making hiring decisions is imperative. It should be noted that simply having a marginalized identity does not prevent you from internalizing oppressive views about your own group and other marginalized groups, but it’s helpful to have diverse perspectives involved in hiring decisions. When assessing something like culture fit, for example, having diversity amongst hiring professionals can provide more unique perspectives, which can mitigate bias during the hiring process.
3. Training for hiring professionals. In addition to having more representation among those making hiring decisions, every person involved in the hiring process should receive anti-racist hiring training and education. This is not just a one-time training but should be ongoing. The world is changing rapidly. Practices that were standard and widely accepted years ago become outdated. How are you holding hiring professionals accountable for their employment decisions and what resources can you provide to educate them about anti-racist hiring practices? Ensure that all hiring professionals receive anti-racist training as an obligatory part of their role.
4. Reach out to different communities. Actively seek to partner with organizations, institutions and non-profits where underrepresented and historically excluded job candidates will be. For example, within a college or university, there are a number of different groups and cultural clubs. Collaborate with an organization like the Black student union for example, if you are trying to increase Black representation. Social media can also provide a plethora of options by looking for platforms specifically dedicated to increasing representation in a specific field or industry. Also look for diverse databases that contain candidates that specialize in your particular area.
5. Evaluate anti-racism during the interview. Employers should be assessing a job candidate’s commitment to anti-racism during the hiring process. If more efforts were made to analyze a candidate’s commitment to equity and justice before they enter a workplace, issues of discrimination and racism would lessen. In addition to utilizing a rubric or scorecard to ensure objectivity during the hiring process, candidates should be asked a series of questions to better ascertain their interest and commitment to racial equity. What-would-you-do situations should be designed to evaluate how a candidate would react in different workplace scenarios.