December Diversity, Equity, And Inclusion Update
Dec 5th, 2022 Assembled By
Matt Glowacki, Diversity Equity & Inclusion Chair Jefferson County HRMA & WI SHRM
SHRM Say’s “Change in DE&I Is Coming”
The rules for what employers can and cannot do in their DE&I efforts may change when the U.S. Supreme Court issues its final opinions in two cases on affirmative action in higher education. "We're bracing for a retraction around our organizational DE&I efforts and government- regulated DE&I actions, as well," Johnson said. "What we're advising organizations to do is be very clear about what their values are."
"Many observers predict a spillover to workplace policies," said Louis Lopez, chief of the policy and strategy section at the civil rights division of the U.S. Department of Justice in Washington, D.C.
Hawkins predicted the court will ban affirmative action in higher education, and "there will be some adjustments that we will have to make."
Many employers have a long-standing diversity, equity and inclusion (DE&I) policy and DE&I training, but some find they don't achieve the intended goals.
Experts discussed DE&I effectiveness at the American Bar Association's Labor and Employment Law Conference on Nov. 10. They recommended determining what your goal is for having a DE&I policy and training. Is it to avoid discrimination lawsuits, foster an inclusive workplace, satisfy a board's demand for diversity or recruit top talent?
DE&I training can help to reduce microaggressions in the workplace, which are behaviors that devalue people in a certain identity group. Examples of this include asking to touch a Black person's hair, calling a Black woman aggressive, asking an Asian person where they are really from, and expecting women to take the meeting notes while men don't, according to Kimya Johnson, an attorney with Jackson Lewis in Philadelphia, and Melissa Pierre-Louis Washington, an attorney with the Washington Law Firm in Washington, D.C.
DE&I training can help to reduce implicit bias in decision-making about hiring, promotions, development opportunities, disciplinary actions and performance reviews. Examples of implicit bias include supervisors being more lenient toward employees who look and think like they do, judging women by their performance alone while judging men by their potential, and assuming that women will take on maternal and caregiving roles, according to Stacy Hawkins, a law professor at Rutgers Law School in Camden, N.J.
This often happens unconsciously. "There are lots of things that we can be doing that we don't have an idea that we are doing. It's about mental shortcuts," Hawkins said.
There's litigation risk for employers that don't take microaggressions and discrimination claims seriously, Johnson said.
"There has been a decrease" in discrimination claims with the U.S. Equal Employment Opportunity Commission (EEOC) in recent years, said Washington, "but they remain high." The EEOC filed 22,064 race discrimination charges in 2020, compared with 31,027 in 2015. It filed 21,398 sex discrimination charges in 2020, compared with 26,396 in 2015.
For employers using artificial intelligence in hiring, there are "tremendous risks" of "turbocharging discrimination in our decision-making," said Kristen Clarke, assistant attorney general for civil rights at the U.S. Department of Justice in Washington, D.C.
Panelists at the conference recommended these best practices to make DE&I efforts more effective:
Tracking DE&I metrics is important because "you can't address what you don't measure," said Dora Chen, associate general counsel for the Service Employees International Union in Washington, D.C. "We need to have folks invested in the work, so they feel personally responsible."
- Track DE&I metrics, such as employee demographics, hiring rates, attrition rates and discrimination complaints over time.
- Assess pay data to find any racial or gender disparities.
- Hold leaders accountable for progress toward DE&I goals.
- Cast a wider net, so the same person or the same small group isn't always responsible for DE&I work.
- Make sure DE&I committees are diverse.
- Foster open communication to support inclusivity in the company culture.
- Use exit interviews and stay interviews to assess the effectiveness of your DE&I policy.
Nonetheless, hitting the diversity numbers in hiring is not enough by itself. "If you are doing DE&I because you are trying to achieve some sort of organizational benefit, diversity without inclusion is actually a liability not an asset," Hawkins said. "That is fraught. It is volatile. If you have inclusion, if you create a culture where people can come together around shared values and bring their whole selves into the workplace, then you unlock the potential of DE&I."
Expecting the same handful of employees of color to always lead corporate DE&I efforts is a mistake. "People are tired of being the lone person or one of the faithful few who are expected to advance DE&I," Johnson said. "People get tired of not being resourced, not being supported and not having engagement of people beyond themselves" in DE&I efforts.
Here’s Why Diversity of Thought Is Often a Workplace Oxymoron
As organizations embrace diversity, equity, and inclusion in their policies, they too often overlook diversity of thought, says Jonathan Segal of Duane Morris. He urges employers to also consider political, religious, and other beliefs, and allow employees to respectfully voice disagreement with leadership.
We hear a lot about the importance of diversity of thought. But in many workplaces, it is more bromide than reality.
Instead, too often, there is group speak that stifles viewpoint diversity. And that group speak morphs into group think when those with different views exit the conversation.
One of the primary business benefits of demographic diversity—such as race, ethnicity, gender—is that differences in experiences associated with identity often translate into different perspectives. If differences in perspective are not valued, then one of the business benefits of demographic diversity is undermined.
For example, there is a clear consensus that employee resource groups are a valuable, if not essential, element of a robust diversity, equity, and inclusion program.
Except that there is no such consensus.
There are undeniably benefits to ERGs relative to engagement and inclusion. But some leaders have shared concerns with me about the focus on “identity.”
These concerns are shared sotto voce or under their employer’s privilege. Publicly, such leaders go along to get along to avoid being attacked or out of fear of being “cancelled.”
Would not it be better if the concerns were shared more openly so that the concerns can be addressed, or at least heard? That’s rhetorical—the answer is “yes.”
We must do more to increase the expression of and consideration given to diversity of thought.
Define Diversity Broadly
Organizations should define diversity to include not only Equal Employment Opportunity demographics such as race, ethnicity, and gender but also other differences in experience, skills, and perspectives. Perspective is the hook for encouraging and considering diversity of thought.
It is also important for legal reasons that the definition of diversity go beyond EEO demographics. This is because employers almost never can consider gender, race, or ethnicity to increase diversity. The lawful way to increase demographic diversity is to focus on other differences that are meaningful when making hiring and other employment decisions.
When defining diversity of thought, include diversity of belief. We cannot tell employees that we want them to feel comfortable being their authentic selves, but then tell them to check their faith at the workplace door. The exclusion of diversity of belief may raise legal issues and certainly raises cultural issues.
Please address political perspective, too. While I hug the center, I am increasingly uncomfortable with how conservatives are shut down when they share conservative thoughts, and therefore, many understandably become reluctant to do so.
The failure to embrace diversity of political thought is primarily a cultural issue with economic implications if those with such thoughts disengage. But it also may have legal implications in those jurisdictions where there can be no discrimination based on partisan affiliation or political perspective, such as Washington, D.C.
Offer an Educational Program
Offer an educational program to all employees on the benefits of diversity of thought. Make clear that you want to hear different views and, more specifically, that you don’t want a culture where an employee says what the group thinks as opposed to what the individual thinks.
Emphasize in the educational program the importance of respect and civility. While always important, these values are tested when we disagree. We want diversity of thought, not ad hominem attacks.
While talking about respect and civility, please keep in mind that the NLRB has invited briefs on what the standard should be for evaluating the legality of work rules under the NLRB. If the board changes the standard, which is one suggestion, rules on respect and civility will carry with them greater legal risk.
Respectfully, I could not disagree more with the board if it were to go that route. More importantly, this legal risk can be mitigated with appropriate thought as to how expectations for civility and respect are framed.
Invite Contrary Opinions
Whether it be formal processes, such as engagement surveys, or more routine workplace events, such as meetings, ask specifically and directly for different viewpoints.
When I facilitate a meeting and everyone is agreeing, I say something like, “I very much need to hear a different view. More specifically, I want to hear from someone who does not agree that [insert].”
Make sure to thank those who speak up. It takes courage to take a position contrary to one’s colleagues, particularly leaders. Encourage it and praise it to stimulate more.
Avoid Statements Discouraging Diverse Views
Be thoughtful about the meta messages that you may be sending that stifle diversity of thought, even where goal may be simply to create some commonality. Here are but two real- life examples:
“I know I can speak for everyone when I say [insert].” Actually, you can’t speak for everyone when it comes to workplace policies, programs, and culture. So, don’t.
“We all should be grateful for X’s leadership with regard to [Insert].” Message heard don’t challenge the thoughts of that leader. Result: you are hurting the leader by creating an echo chamber for them
Value Thought Diversity in Decision Making
The true test for whether diversity of thought is valued is whether it is weighted in decision- making regarding hiring and other employment decisions.
For example, before making a hiring decision, consider asking: what could this person add in terms of perspective, skills, knowledge, or ability that we don’t already have? Notice I did not say in terms of race, ethnicity, or gender.
WHY IS NONDISCRIMINATION IMPORTANT FOR FEDERAL CONTRACTORS?
When it comes to non-discrimination programs for federal employees, it’s easy to think that all workers receive uniform levels of non-discrimination training. For example, most people assume that laws like Title VII of the Civil Rights Act or laws implementing Executive Order 11246 contain some requirement to train federal employers on their obligation to make sure they are not using protected characteristics — sex, race, religion, or national origin — when making employment decisions. However, that is simply not the case.
Title VII prohibits discrimination based on those specific characteristics, but it remains silent on how to avoid discrimination. Even deeper, Executive Order 11246 was meant to provide a blueprint for how to ensure non-discrimination in the workplace, but it fails to provide explicit training requirements. As a result, training requirements fell by the wayside, becoming a “nice- to-have” rather than a “must-have.”
The Office of Federal Contract Compliance Programs (OFCCP) focuses on regulations regarding affirmative action for individuals with disabilities and protected veterans. As such, when Executive Order 11246 is amended in the future, an explicit training requirement will very likely be added. Non-discrimination training helps to ensure that affirmative action programs are successful and should therefore be mandatory for federal contractor employers.
Why Is Non-discrimination Important for Federal Contractors?
The purpose of affirmative action requirements is to “establish fair access to employment opportunities to create a workforce that is an accurate reflection of the demographics of the qualified available workforce in the relevant job market.” In other words, affirmative action regulations for federal contractor employers are meant to keep non-discrimination at the forefront of people’s minds. This endeavor demands explicit training requirements that detail to viewers exactly what their non-discrimination obligations are. By implementing specific training requirements, employers show how committed they are to providing all employees and job candidates with an even playing field.
When non-discrimination training is treated lightly or isn’t required, an organization suffers. EEO compliance is a non-revenue-generating function, so budgets are often strictly limited to clearly enumerated compliance requirements. If a training program is not required, it will likely go without funding. While this may change when an actual discrimination violation is found, it’s usually too late to reverse course. The damage has already been done.
Non-discrimination training is also essential because non-discrimination and affirmative action are complex. When people hear the words affirmative action, their minds automatically jump to corrective affirmative action measures, such as quotas, point systems, or set-asides. While these measures are sometimes necessary to remedy past discrimination, corrective action should be considered a last resort. A federal affirmative action program actually involves preventive affirmative action that avoids corrective measures. Not only is training necessary for decision makers to understand what is expected of them, but it should also lead to better buy-in and participation by overcoming the misunderstandings and misconceptions that surround “affirmative action.”
Decision makers need to know what to do to avoid breaking the law, and employees need to know what their rights are so that they can enforce them if necessary. A well-informed employee base should keep the employer on its toes to actively prevent discrimination from occurring in the first place. That is why the OFCCP’s regulations contain so many notification
requirements. Using the same logic, there are specific ways employers can implement non- discrimination training for federal contractors.
How Federal Contractor Employers Can Properly Implement Non-discrimination Training Most employers understand that discrimination based on certain protected characteristics outlined in Title VII of the Civil Rights Act is illegal, and most people have a fairly good
understanding of what those characteristics are. Laws against non-discrimination should not be a surprise to anyone. Still, there are basic training requirements that should be part of every onboarding package for federal contractors. Here’s how federal contractor employers can implement non-discrimination training:
While developing non-discrimination training programs, it’s important for employers to focus on their particular audience. For example, employers can gauge employees’ current experience with affirmative action. Have they undergone any non-discrimination training in the past?
- Focus on separate and more robust training.
Employee training should focus on what the employees’ rights are and how to enforce them.
Additionally, hiring manager and recruiter training should focus on how the organization’s equal employment opportunity and affirmative action obligations impact how they are expected to make and document employment selection decisions. Plus, federal contractor employers should consider some level-setting training for executives to help them better understand the compliance function and its actual needs.
Effective non-discrimination programs equip employers and managers with the right tools to make non-discrimination training as comprehensive and impactful as possible. Another way to ensure that non-discrimination training programs are effective is to include ways for leaders to resolve potential problems. This should be done in a way that is constructive rather than negative.
- Include problem-solving courses.
For example, if an employee voices something during the initial training that contains racial bias, the trainer should acknowledge what the employee said and follow up with positive reinforcement. For instance, the trainer could say, “Yes, Jessica, thank you for bringing that up. Everyone, Jessica just brought up a specific behavior or bias that I need your help correcting.” Nothing in the training should target specific employees or tear people down.
If the training program is robust and comprehensive, people will likely need continuing courses to remind them of all they have learned. Employees and managers should receive refresher training to reinforce the importance of equal employment opportunity and affirmative action. This type of training should be offered on a regular basis, but it doesn’t necessarily need to be offered annually.
- Offer “refresher” training.
For example, if the organization implements a three-day intensive non-discrimination training course for its employees, it could offer a two-hour online refresher course every year afterward. The goal is to show employees that the organization is prioritizing non- discrimination and committing to affirmative action.
When it comes to training content, avoid simply copying the complicated text of the law or regulations and pasting it into the training materials. Doing so tends to leave people feeling vaguely like they just failed a law school course and do not have further understanding or enlightenment.
- Focus on the training content’s practical applications.
Employers should instead focus on the practical implications of the underlying laws and regulations. What do they mean for the employee in terms of their day-to-day responsibilities? Strip away the legalese and business jargon, as these tend to confuse rather than clarify.
Instead, approach training thoughtfully despite the lack of meaningful guidance from the federal government.
Unfortunately, the federal government has provided little guidance in terms of non- discrimination training for federal contractors. However, by focusing on specific goals, employers and managers can implement non-discrimination training programs that work for their organization and inspire meaningful change.
Navigating the Winery Workplace with an Invisible Disability
What is an Invisible Disability?
Legally recognized by the Americans with Disabilities Act (ADA) and civil rights organizations worldwide, an invisible disability is “a physical, mental, or neurological condition that is not visible from the outside, yet can limit or challenge a person’s movements, senses, or activities,” according to the Invisible Disabilities Association. They go on to state: “Unfortunately, the very fact that these symptoms are invisible can lead to misunderstandings, false perceptions, and judgments.”
In the United States alone, an estimated 25 percent of people live with a disability and an estimated 20 percent with an invisible disability. The number of workers with disabilities is alarmingly on the rise, partly due to ongoing effects of long COVID. Since the start of the pandemic in 2020, about 900,000 more American workers have reported a disability, according to recent research published by the Federal Reserve Bank of New York.
Invisible disabilities range from visual and hearing impairments, to cognitive and learning differences, to others that defy clear categorization. Autism, multiple sclerosis, diabetes, blindness or low vision, and depression are just a few examples. Epilepsy, which caused my grand mal seizure, and which winery worker Joshua Pehle describes below, is also an invisible disability.
Working in the Winery With An Invisible Disability
Over the course of my career, which spans several industries, I’ve never felt the burden of my invisible disability as heavily as in winery settings, where I worked for more than a decade.
As that harvest season ramped up, so did my anxiety. My grand mal seizures subsided, but I was still plagued by nagging psychomotor seizures that tended to strike during my morning cellar shifts. For safety purposes, I disclosed my epilepsy to my managers, and we agreed that I would not climb high ladders or drive the forklift. We also agreed that I would work a half-time shift, partly because my nervous system could not handle the standard 12- or 14-hour stints. Lack of sleep induces seizures as reliably as beer.
Despite these accommodations, I felt myself slipping mentally and physically, forgetting things and botching enology data. I cannot stress enough that my managers were as kind and reasonable as any in my whole career. Yet they couldn’t protect me from my teammates, who knew I received special consideration, but didn’t understand why. As much as I wanted to explain my struggle, disclosing disability is complex. Their discouragement with me was plain, and I became demoralized. Weeks before the end of the season, I quit.
Even the most supportive manager cannot compensate for a broken winery workplace culture—one that moves at such an unapologetically lightning pace that it fails to consider the potential contributions of those who work differently.
As ashamed as I felt about bailing, I was not alone. One in 10 working adults with disabilities reported experiencing some kind of workplace discrimination within five years of the passage of the ADA, according to recent research. Strikingly, a third of those respondents permanently exited the workforce. How many workers, then, has the wine industry lost to disability discrimination?
Disability Discrimination in the Workplace
Joshua Pehle is an enologist and cellarmaster at Justin Vineyard in Paso Robles, California. At age four, he began having partial seizures and was diagnosed with epilepsy. “The first memory I can remember is of having a seizure,” he says.
In his mid-20s, Pehle began having much more intense, violent, nighttime seizures too. By that time, he was on the winemaking career path, and had not only worked local harvests in his native Missouri but begun interning at prominent wineries around the world.
If epilepsy challenged his work, it didn’t stop him: He was passionate to learn all he could about winemaking and thrived in a demanding atmosphere. “The cellar was super-fast-paced and I had to get the job done in a certain way.”
Eventually, Pehle landed his dream job at a cult winery in California—but the dream was over during the very first month, when he disclosed his epilepsy to his employer. News of his termination came via email, which did not state a cause for dismissal. To Pehle, the reason seemed clear: “They looked at me like a liability.”
While since 1990 the ADA has ostensibly protected workers like Pehle, prohibiting discrimination against people with disabilities in everyday activities, the reality is more discouraging. In 2021, workers filed a record number of lawsuits against employers accused of violating the act.
In the aftermath, Pehle doubled down and found new ways to manage his epilepsy. In April 2022, he underwent a left temporal lobe craniotomy to remove the part of his brain most vulnerable to seizures. For months, he would leave work early to rest or attend follow-up appointments, eliciting heavy side-eye from colleagues who were unaware of his circumstances. For practical reasons, he told his manager, but was hesitant to share with coworkers.
“I’ve always been open to talking about [my epilepsy],” he says, “but I’ve learned that if I try to disclose, it can get blown out of proportion.” Instead, he kept working. “I would try to power through to be there for my team.”
While the surgery was largely successful, Pehle now finds his brain gets easily fatigued. “They took out the ‘problem’ part of my brain, but it was around motor and speech,” he says. He finds, as the workday wears on, “I can barely talk. My brain doesn’t function like it used to.”
Pehle reports that living with epilepsy has given him greater compassion for anyone going through difficulty. “If you’ve been healthy your whole life,” he says, “you probably don’t even think about it.”
Breaking Out of Isolation
In 2013, Nathan Carlson, the general manager and winemaker of Center of Effort Winery in Arroyo Grande, California, began experiencing hearing loss, along with debilitating dizzy spells, nausea, and vertigo. As symptoms intensified, Nathan’s doctor diagnosed him with otosclerosis, which results when the bones within the ear ossify and prevent soundwaves from passing.
“It really had affected my work,” says Carlson, “mostly in interactions with other people, not being as good a leader for my team as I would like, and missing out on connections with other people.”
Hearing, of course, is integral in the cellar. “It is crazy how much hearing comes into play in the wine world, whether communicating with customers, employees, or team members,” says Carlson. “Even listening to a barrel fermentation, or the rising tone of splashing as a barrel is filling. Pumps, tractors, and fans all signal their condition through sound.”
He soon learned that his condition could be corrected by surgery, but it would take multiple surgeries over the course of several years. Meanwhile, his frustration mounted. “I think I came off as not very sharp, and socially inappropriate, when in fact I was just struggling to hear and understand,” says Carlson.
When his hearing was finally fully corrected in April 2021, it was “completely life changing.” He says, “I find it to be a lot more straightforward to communicate with people around me, to connect and understand subtle inference, jokes, and nuance in a way that has been impossible for years. Hearing loss is really isolating.”
“The world in general is not very understanding of people with any disability that is not clearly obvious,” says Nova Cadamatre, the owner of Trestle Thirty-One Winery in New York and the first woman winemaker to earn the title of Master of Wine. Living with a condition called dyscalculia—commonly described as math dyslexia—Cadamatre faces daunting challenges in the winery, including calculations for tank additions.
“It’s really hard to have [dyscalculia] as a winemaker,” she says. “I flip numbers around as I read them. I can’t memorize numbers or even keep more than a two-digit number in my head for more than a few seconds.”
In a beverage production cellar, numbers come into play nearly every day. Getting the figures right can be the difference between making an award-winning wine and one that’s downright flawed. To compensate for her disability, Cadamatre works extra hard.
“For analysis, I make sure I am working very slowly over the results and always triple check my addition calculations,” she says. “If it is a particularly tricky or impactful add, I will still have someone else check the math for me. I’ve also built several spreadsheets to help do calculations for me. I still have a program I wrote in Basic for my graphing calculator that solves the quadratic equation.”
Working with diverse teams of coworkers, a little curiosity goes a long way, says Cadamatre. “If you see people struggling, try to understand their point of view. Try to understand if they are experiencing a different reality from the one you see.”
Speaking Out and Building Representation
Importantly, no single perspective should be considered fully representative. In the words of Angela Pieper, a wine industry veteran who lives with both ADHD and autism and serves on the Diversity, Equity, and Inclusion Committee of Women of the Vine and Spirits (WOTVS): “If you’ve met one disabled person, you haven’t met them all; you’ve met one disabled person.”
As Pieper worked her way through the beverage industry—from an early job in wine retail to her current position at Jagermeister—she never knew that she was living with invisible disabilities. She only knew she was struggling mightily. At 37, she was finally diagnosed, bringing extraordinary peace of mind. Since then, Pieper has been adamant about staying vocal in order to build representation within the beverage industry and beyond.
Pieper has led industry webinars in neurodiversity for WOTVS and lends her perspective to their regular meetings. To colleagues who may be struggling to adjust in the workplace, Pieper stresses the importance of communication. While recognizing the complications that can sometimes come with fully disclosing a disability, she advises, “It’s your responsibility to understand your limits and capabilities. It’s important to understand yourself and be able to clearly communicate that to managers and coworkers.”
Importantly, notes Pieper, employees must ask for help when needed. As a parallel, she references her height. “I’m 4’11” and I need a stepladder to reach the top shelf. I ask for help!”
For employers, Pieper underscores the importance of documenting procedures and policies through written materials. Everyone learns differently, so it’s very important to offer employees a reliable way to refer to company guidelines.
Carlson reiterates this advice. “Provide instruction on critical items in multiple formats— describe, demonstrate, and have a written standard operating procedure available. Make it
clear that it is always okay to clarify instructions or to ask for accommodation when needed. This will benefit your team even if they are not operating with a disability.”
Winery leaders striving to create a more welcoming workplace for a diverse workforce may find this advice to be only the tip of the iceberg. They may also find real challenges: The majority of wineries in the U.S. (81 percent, according to the Wines and Vines Analytics database) are small operations lacking adequate human resources professionals to facilitate accommodations and support for workers with disabilities. Still, winery leaders can seek supplemental support through independent HR agencies and consultants.
The wine business as a whole can do far more to cultivate curiosity and acceptance and to create a more welcoming and diverse workplace. We can begin by listening to people with disabilities, invisible and otherwise. Importantly, every winery worker in any position of power can make a greater effort to practice compassion and understanding with colleagues who work differently. Let’s give it a try.
Musk’s Twitter Demands Allegedly Biased Against Disabled Workers
Elon Musk‘s demands that Twitter Inc. employees return to the office and be prepared to log “long hours at high intensity” discriminate against disabled workers and has led to their firing or forced resignations, a new class lawsuit filed in San Francisco charges.
Dmitry Borodaenko, a former engineering manager, says that’s what happened to him, as he was fired soon after telling his boss that he wanted to continue working from home because he’s a cancer survivor and especially vulnerable to Covid-19, according to the suit.
Borodaenko seeks to represent a class of disabled Twitter current and former workers nationwide who’ve suffered similar discrimination as a result of Musk’s actions since assuming the helm at the social media giant.
The lawsuit is the latest challenge over working conditions at Twitter after Musk acquired the company. Twitter is currently facing lawsuits alleging it failed to give proper notice of layoffs to workers and contractors in violation of federal law.
Soon after completing his purchase of Twitter, Musk declared that remote work would no longer be allowed, “with only rare exceptions for ‘exceptional’ employees,” Borodaenko says in the suit filed in the US District Court for the Northern District of California on Wednesday. That
discriminates against disabled employees who can perform their jobs with or without reasonable accommodation but who weren’t allowed to continue working, the suit says.
Disabled employees were either terminated or forced to resign after being required to accept working under unreasonable circumstances, the suit says.
Musk’s mandate that remaining employees must be prepared to work long, high intensity hours, which employees were required to accept or they would be viewed as having submitted their resignations, was “highly discriminatory against disabled employees,” the suit says. Many disabled employees won’t be able to meet the “new heightened standard of performance and productivity,” the suit says.
Boradaenko also says Twitter has indicated that workers who don’t accept Musk’s mandates will receive a severance package. But there’s concern that they’ll be forced to provide legal releases in order to obtain the package. That’s what happened to workers at Musk’s Tesla Inc., the suit says.
Causes of Action: Americans with Disabilities Act; California’s Fair Employment and Housing Act.
Relief: Order enjoining Twitter from seeking releases of claims from employees as part of severance offer without first notifying them of their legal rights and providing them with contact information for the company’s legal counsel; order reinstating disabled employees who want to return to their jobs with reasonable accommodations; compensatory and other damages; pre- and post-judgment interest; attorneys’ fees and costs.
Response: Twitter didn’t immediately respond Thursday to Bloomberg Law’s request for comment.
A quarter of US hiring managers discriminate against Jews, survey shows
Workplace antisemitism is pervasive, according to the poll of hiring managers.
A quarter of hiring managers say they are less likely to move forward with Jewish applicants, according to a survey conducted by a San Francisco-based employment resource firm.
In light of recent high-profile cases of antisemitism in the U.S., ResumeBuilder.com polled 1,131 recruiters. Twenty-three percent say they want fewer Jews in their industry, while 17% add that managers have told them to avoid hiring Jews.
The top reason for discriminating against Jews, the results show, is a supposed fear of their “power and control,” with 38% of hiring managers citing that excuse. Recruiters also justified discrimination by claiming that Jews consider themselves the “chosen people” and they have
too much wealth, in addition to listing that “Jews are greedy,” “Jews killed Jesus,” “Jews are an inferior race,” “Jews are oppressors” and “Jews are less capable.”
“In this era of fighting for equality in hiring, Jewish individuals have largely been left out of the conversation and the issue of antisemitism has, for the most part, gone unaddressed,” said Stacie Haller, ResumeBuilder.com executive recruiter and career counselor. “Antisemitism in the workplace starts at the hiring process with individuals who do not want to hire Jews because of bigoted stereotypes, but that is not where it ends.”
Among current employees, 33% said that workplace antisemitism is frequent and 29% said that antisemitism is acceptable within the company that employs them, according to the survey.
While 56% of hiring managers understood that candidates were Jewish because they had confirmed it themselves, 33% said they identified their Jewishness by their last names and 26% of hiring managers make decisions about who is Jewish based on a candidate’s appearance, the survey found. Some recruiters said they had identified Jewish candidates by their “voice,” their “mannerisms,” or because, “they are very frugal.”
Said Haller, “Organizations need to commit to oversight, training and having meaningful conversations about antisemitism. Removing prejudice and ensuring the workplace is equal, fair and accessible for all is not an easy challenge for organizations to tackle, but it’s absolutely essential.”
There does appear to be some room for optimism, however. Thirty-one percent of those surveyed claim their attitude towards Jews has improved over the last five years. Nine percent say their attitudes towards Jews have worsened, though, while 60% noted no change.
Same job, different pay – government clears up why it’s okay
The Department of Employment and Labour says that it does not amount to unfair discrimination between employees if there is a difference in remuneration or other conditions of employment – as long as the circumstances are fair and rational.
A recent session held by the department tackled the topic of fair pay differentiation in the workplace, noting that many employees do not understand the topic, and that there is a base lack of education around it, leaving things open to speculation and suspicion.
This can lead to claims being made or cases being lodged where employees, who are doing the same job as their colleagues but are earning less, take the fight to their bosses, claiming unfair discrimination.
The employment equity director for the department, Ntsoaki Mamashela, said that there are factors in South African law that justify a differentiation in the terms and conditions of employment – including pay.
“If employees perform work that is of equal value, a difference in terms and conditions of employment, including remuneration, is not unfair discrimination if the difference is fair and rational,” said Mamashela.
She listed the following grounds as some that may justify a differentiation in terms and conditions of employment, such as the individuals:
These factors can all affect terms and conditions if the performance evaluation system of the employer is consistently applied. She added that the case of demotion due to organisation restructuring or any other legitimate reason without a reduction in pay and the existence of a shortage of relevant skilled staff could affect terms and conditions of employment.
- Respective seniority
- Length of service
- Quantity of work
- Quality of work
Mamashela said that under the 2015 Code of Good Practice, employers are guided by the ‘Equal Pay/Remuneration for Work of Equal Value’ principle and promote the pay equity principle in the workplace.
She said that amendments need to be made to the Employment Equity regulations and Code of Practice on the grading of salaries to clear this up.
If there is a discrepancy in pay or another type of difference that is unfair, the Commission for Conciliation, Mediation and Arbitration (CCMA) may be approached.
The senior commissioner of the CCMA, Laurie Warwick, said that in terms of the Employment Equity Act, the CCMA has jurisdiction to conciliate disputes for employees who do not earn over the threshold of R224,080. If the employee earns above the threshold, all the parties to the dispute must consent to the arbitration, said Warwick.
Mamashela also noted that there is a greater need for increased enforcement and training for labour inspectors as well as stakeholders.
The Department of Employment and Labour stakeholder session comes as utterances of a change in remuneration standards and benefits packages rise.
Financial services firm PwC said that businesses are reconsidering how they treat their employees to best retain talent. This could lead to changes between employees’ working arrangements and salary.
According to the group’s latest Executive Directors Report for 2022, in the wake of the pandemic, employees are feeling more empowered by their circumstances and are willing to ‘test’ the market.
Workers of today desire higher levels of work-life integration, and this is a process of negotiation, said PwC. Employers no longer have the upper hand, relying solely on increases in guaranteed salary as their retention strategy.
Everything you need to know about gender pronouns at work
It is increasingly common for professionals of all stripes to include a line in their digital signatures, below their name or title, indicating what gender pronouns they use. That may read something like "she/her/hers" or "they/them/theirs," and specifies how an individual wants to be addressed other than by their name.
For some people who are gender nonbinary, or transgender, being misgendered can cause discomfort and anxiety.
"Being misgendered is a dehumanizing experience: it's being reminded again and again that you don't exist as your gender in other peoples' eyes," said Camy Seitz-Cherner, a co-founder of a tutoring cooperative who uses the pronouns "they/them."
Advocates stress how important it is that companies develop policies around personal pronoun use as part of their inclusion efforts, in part so LGBTQ people feel safe at work.
More simply, it's a matter of respecting everyone in the workplace.
"It's good manners and politeness — that's the moral argument," said Riki Wilchins, an activist and founder of TrueEquity, an organization that specializes in training gender and race in the workplace.
It's also good for business and recruitment efforts, experts said. Creating a safe and inclusive workplace allows for employees to be more productive and creative.
"The other argument is it's got good business value. Diverse workforces are places people want to work, and there is good data that shows diverse teams do better," Wilchins added. "People do not want to be in workplaces where it's OK to discriminate against some people."
In the age of changing gender norms, experts advise companies to develop and enforce policies that are inclusive of LGBTQ people, including transgender and gender-nonconforming employees. Discrimination on the basis of sex, including sexual orientation and sexual identity is illegal, and refusing to respect an individual's pronoun choices could be viewed as discriminatory.
"Like everything else in the employment arena, employers have a risk of liability when they act in a discriminatory manner," said Helen Rella, a New York-based employment attorney at Wilk Auslander. "That doesn't change whether we're talking about age discrimination or sexual orientation. It's the same analysis."
That said, an employer can prohibit workers from including their pronouns in their email signatures, but only if the policy is enforced consistently across the company.
"The company can say company policy is that emails do not have identifier attached to them. If a policy is implemented across the board, it makes it more difficult to claim an employer acted in discriminatory manner," Rella explained.
Supervisors set the tone
North Carolina workplace attorney Kelly Hughes of Ogletree Deakins acknowledges that the introduction of new pronouns and honorifics, like the singular they/them/theirs and Mx. instead of Mr. or Mrs., can create confusion in the workplace.
"You need to have policies in place so you can train on those policies, and they need to be broad and cover inclusive terminology, allow restroom usage consistent with gender identity, and gender-neutral dress codes," she said. "There are areas you can show support and inclusivity."
With respect to pronouns, Hughes recommends that employers permit, but do not require, workers to include their pronouns in their email signatures.
"Particularly if company executives want to include pronouns in their signatures, it's a helpful way of signaling inclusivity," she said. "But I think it's really something that at this point should be optional because if you require your employees to disclose pronouns, it can have an adverse effect on them. They can be gender fluid or might not be comfortable disclosing their pronouns at that time."
"What can I do to help?"
Lily Zheng, a diversity, equity and inclusion consultant and author of "Gender Ambiguity in the Workplace: Transgender and Gender-Diverse Discrimination," has advice on how employers can start building a transgender-inclusive workplace.
"First, talk candidly and casually about trans issues to demonstrate you have mastery of them. If the topic comes up in conversation, casually show you know how to use they/them pronouns," they said. "Many workplaces don't do these things until they know there is a trans person inside the workplace, which I think is backward."
If you instead build a workplace that's inherently transgender-inclusive, trans employees — or candidates — will know your workplace cares.
"Say, I want to make sure you feel respected at work, what can I do to help. Whatever they tell you to do is what you should do," Zheng said.
Seitz-Cherner, of the tutoring collective, said it is incumbent upon companies to support transgender and gender non-binary employees by educating their colleagues around proper pronoun usage.
"Respecting people's pronouns is a matter of practice and behavior change; HR departments can offer coaching, incentives and accountability systems to employees who want to change but struggle, so that transgender employees aren't continuously misgendered, minimized or harassed in their workplaces," she said.
United States: The Rise In Age Discrimination Law Suits In America
The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals 40 years or older. To prove age discrimination, an employee must establish that (1) he or she is in the protected age class; (2) he or she was subjected to an adverse employment action; (3) he or she was qualified for the job; and (4) a younger person filled the
position. Under the ADEA the employer's adverse action must be made solely based on the employee's age (also known as “but-for” causation).
Recently, there has been an uptick in ADEA lawsuits in America. In the past year, age discrimination lawsuits have been filed against Lily USA, International Business Machines Corporation (IBM), Hewlett-Packard Enterprise Company, Novo Nordisk, Incorporated, R3 Government Solutions, LLC., and Fischer Connectors Incorporated, to name a few. One reason for an increase in ADEA lawsuits is the average age of retirement has increased. Another reason is that employers tend to associate age with digital skills and therefore focus recruiting younger employees to keep up with the changes in technology. However, disqualifying otherwise eligible employees solely for their age is unlawful.
Workplaces are plagued by classism, report claims
(from UK, but important to know, MG)
A new poll claims to highlight the need to tackle classism at work, with 57 percent of employees witnessing discrimination or a lack of inclusivity in the last year alone. A third of UK employees say classism is active in their workplace, according to the 2022 Diversity & Inclusion in the Workplace Report from Wildgoose. The report is based on a survey of employees from 133 UK workplaces. It asked if their workplace is an inclusive environment, what areas of diversity their organisation could improve upon, and whether they have experienced discrimination or inequality in the workplace.
The report claims that the likelihood of experiencing classism at work differs depending on where you are in the UK: half (50 percent) of employees working at Scottish companies identified classism as a key issue. This falls to 44 percent of employees in London, and 40 percent in the North East.
These findings follow recent research by Queen Mary University, which found that a quarter (25 percent) of UK workers had been mocked, criticised or singled out for their accent. The rate rose even higher to 29 percent among senior managers from working class backgrounds.
Classism can take the everyday form of mocking accents, or can have career-long impacts for employees: such as being underpaid compared to colleagues, or halting progression into top jobs. It’s estimated that working class people in the UK earn, on average, £6,800 per year (around 17 percent) less than their middle-class colleagues in elite sectors like finance, medicine and law.
Classism has become a more prevalent issue since 2019. When employees were asked what areas of diversity their company could improve upon three years ago, socio-economic diversity ranked below disability discrimination, ageism and sexism as an area of concern.
The latest survey also claims that for 73 percent of employees discriminated against (for any reason), the problem wasn’t dealt with by the company.
Commenting on the findings, Wildgoose managing director Jonny Edser states: “It’s quite shocking to discover that classism exists in more than half of the UK’s workplaces. That’s a lot of businesses where people are disadvantaged because of their background. With a potential recession around the corner, businesses will be looking to optimise performance as much as possible. One way to do this is by making sure they’re a meritocracy, where people can make the most of their abilities and rise regardless of their background. By combating discrimination, they’ll also be creating a more harmonious working environment and higher job satisfaction.”
“With so many workplaces suffering from class divisions, it’s important that companies make efforts to bring their people together. We know how effective social activities can be in forming bonds between colleagues and creating a level playing field. And that has to be the aim: to make employees realize they’re all equal.”
Accent Discrimination Is Still A Pervasive Issue In The Workplace, Research Finds
A new study from Sutton Trust indicates that accent discrimination is still a pervasive issue. The study looked at the experiences of 17-18-year-old university applicants, 18–21-year-old university students and young professionals between the ages of 21-24. The study participants were all within the United Kingdom. The research found that there was “accent prestige” for those who spoke what is sometimes referred to as the “Queen’s English.” The researchers also found that there was accent bias for participants from industrial cities like Manchester, Liverpool, and Birmingham, which are areas that are considered to be working-class within England. Both ethnic minority accents of Afro-Caribbeans as well as Indians also experienced bias. Similar findings have been revealed in previous studies within the United States.
One study found that within the Lewiston-Auburn area of Maine there was accent discrimination against those with African accents. The researcher noted that “those with perceived African accents are seen to be the Lewiston-Auburn area archetype of African refugees and migrants...being assumed to have little education, job skills, intelligence, and trustworthiness within the workplace.” In that same study, the non-white individuals that were perceived to have English language barriers were believed to be unemployable.
Within the United States, accent discrimination falls under language-related discrimination, which is protected under Title VII of the Civil Rights Act of 1964. Language discrimination can show up in a number of different ways in the workplace: Employers may decide not to hire a
job candidate because of an unconscious perception that the candidate is not qualified or doesn’t “fit” the job role. Accent bias can also show up in the form of “English-only” signs, which are illegal, unless speaking only English is necessary to perform the job. Employees with non-native accents may also experience bias when it comes to performance evaluations. Those rating the job performance of non-native speakers may unconsciously rate them as less favorable. One study from the University of Chicago found that a foreign accent makes a person seem less truthful. Accent discrimination may also show up as hostility in the workplace. In one case, a Filipino nurse indicates that her director gave her negative feedback and humiliated her because of her thick accent. She ended up suing her hospital for national origin discrimination.
One educator who immigrated to the United States in the 1980s shared her experiences with accent bias but preferred to remain anonymous. “No matter how good of English, or no matter how much education I have...I have to justify my mere presence...nobody else is being asked to explain anything.” She went on to explain that our accents are shaped by many different factors. “What we call ‘accent’ is a mislabel. What people refer to as an accent is actually linguistic intonation. It comes from the language you have spoken the most...or during the first part of your life...accent is the way each individual sounds.” For many foreign-born Americans, the feeling of being an outsider is ever-present. “I wasn’t aware that it was discrimination initially,” the educator explains. “I was just embarrassed and it impacted me in my career when I started teaching because students were making fun of me.”
There are several ways that employers can address and mitigate accent bias in the workplace. Overcoming this type of discrimination should take a multi-pronged approach. First, there needs to be more awareness around the issue. Those with native accents are often unaware of the pervasive bias that those with perceived foreign accents experience. Even when customers may seem to prefer Native-English speakers, customer wants and desires cannot and should not dictate workplace policies and practices. Research indicates that call center customer satisfaction rates dropped when the call center moved outside of the United States. Those making hiring and employment decisions should understand that customer preference is not a permissible reason for discrimination. In addition to ensuring that there is education and training around our inherent accent biases, it is vital for workplace practices, including hiring processes, to be as standardized and objective as possible.
Discrimination Is A Job Site Safety Issue
A construction site can be dangerous for a lot of reasons, and measures should be taken to mitigate them whenever possible. This includes on-the-job harassment, threats, racial or other kinds of discrimination. What can we do about it?
There are few subjects more sensitive than discrimination in the workplace, and the fact is, it can take many forms. It happens in every industry, and the construction industry is no exception. The good news is that there are things that can be done about it, both from a managerial and an employee position. Management and ownership can take the reins to steer the ship in positive directions, and employees have tools at their disposal to protect themselves and their co-workers by reporting dangerous activity when it happens. Let's take a look at some of the statistics that represent the issues the industry faces, and then some proactive steps that can be taken.
By The Numbers
Consider the reality that African Americans are 12% of the nation's general workforce, but in the realm of the construction industry it drops to half that number. Black employment is underrepresented, meaning that there are fewer black workers on a given jobsite, on average, than in other sectors. The disparity for women in the workforce is even greater. The most recent stats show women make up 46.6% of general labor, but only 10.9% of construction employment.
In the forthcoming Asphalt Contractor Magazine 2023 State of the Road Building Industry Report (December 2022) Audrey Copeland, the president of the National Asphalt Pavement Association, says, "NAPA’s 2020 market research indicated that the most persuadable audience—those most interested in learning more about the industry—are women aged 18-24, without a college degree or children. This group wants financial security and was most persuaded by our industry’s equity in pay between men and women."
At least in part, some of the continued problems with worker shortages could be solved right here. These are two available and willing groups of workers who want the opportunity, but continue to be left out of the majority of hiring decisions--or might there be other hurdles worth considering why they are underrepresented.
According to the U.S. Equal Employment Opportunity Commission (EEOC), which handles all areas and type of workplace discrimination complaints, tens of thousands of official charges are filed every year, between 60--90,000 annually (not just in the construction industry), dating back to 1997. Tens of thousands.
Over the last twenty years, the number of charges filed under racial discrimination has been the top issue (excluding general workplace employer retaliation), never dipping below 32% of total cases submitted. Behind the issue of race, the second and third dominant charges filed are those based on Gender and Disability. These numbers are hard to ignore, but let's look a specific scenario as a case study of these issues.
In a very recent example, on September 30, 2022, it was reported in the news that the EEOC filed two separate lawsuits in the hard-hit state of Florida. One was against J.A. Croson, LLC, a plumbing and HVAC group, and the other is against Alto Construction, a development and asphalt paving company.
The lawsuit alleges that Alto management regularly degraded and harassed black employees by flagrantly using the N-word in reference to them and around them. After being confronted, not only did it continue, but an unnamed supervisor made it known that, "we say the N-word here a lot."
As is historically the case, the insults did not stay contained to verbal abuse alone. A black employee was allegedly assaulted by a division manager after they approached them from behind and hit them with a shovel between the legs. After the obvious objection to being assaulted in such a humiliating and painful manner, the employee was fired later that same day.
The lawsuit against J.A. Croson contained descriptions of alleged unfair job assignment practices, racial slurs, and stereotypes being hurled at black and Hispanic employees on a near constant basis. Like with Alto, after complaints were brought to management, the victims were terminated. In a Construction Dive survey conducted during the pandemic, 77% of black construction workers said they were the victim of a racist behaviors. Examples included racist graffiti, verbal abuse, and even nooses being placed on the work site.
Addressing the Issues
In response to the increasing nature of these kinds of charges, on May 17, 2022, the EEOC held a hearing on the subject of Mistreatment of Women and People of Color in Construction, and heard from several expert witnesses on the challenges faced by minorities and women who work in the traditionally white and male-dominated construction industry.
Janel Bailey, co-executive director of the Los Angeles Black Workers Center, said, “It isn't mysterious that the EEOC called for a hearing regarding the trades specifically. The current situation didn't fall from the sky. This is the result of exclusive policies that have shaped the cultures of the industries and their unions. The good news is that we can choose to move away from that legacy, and it must be in partnership with Black workers and other workers who have been left out.”
From the testimonies given, and research done on proactive solutions, here is a non- comprehensive list of some of the ways employers can begin to address the negative impacts of racism in the workplace:
- Identify bias - This can be difficult, but crucial. Examine and note hiring, staffing, supply contracts and other representative decisions. Understand that identifying a bias is present is not some moral failing. It is a structural, systematic failing. It is so ingrained in day-to-day
thinking and operation, that it isn't even noticed, which is why it takes real work to undo. It's in the numbers. Think back to the numbers of minority and women workers who are looking for the very work contractors are trying to fill positions in.
- Develop new company policy to specifically target and overcome bias - These policies can look like inclusive plans that target a specific number of persons of color or women to be hired, as well as how many are being promoted internally to higher level positions. Are minorities and women being included in safety meetings or company decision making at any level? A workplace cannot be made safer or more inclusive for these employees if all the problem solving without them. Ask questions and hear what employees have to say. Lastly, there should be public and companywide discussion about the expectations for work environment going forward, and what the consequences will be for not respecting the personal dignity and safety of all employees.
- Assess diversity inventory - This is really a subset of the previous point. When creating new company or workplace policies, a vital part of that process is to take an actual survey of the demographics of workforce and management teams. That, in and of itself, can reveal a lot of information. It tells a story of its own. Any adjustments made are a good and valuable step in the right direction.
- Eliminate racial pay/wage gaps - It cannot be understated how important it is to pay staff fairly and equitably. Advocating the importance of this is crucial. Evaluate whether employees doing the same job, at the same seniority level, are being paid equally. According to a 2022 study by Compass, African American men make $.76 per dollar of their white counterparts, and Hispanic men $.75 per dollar. It's even worse for Black and Hispanic women, who earn $.57 and $.50 respectively.
- Inquire up/down the chain - This requires some real work to investigate, and takes time to bring about substantive change. It can mean researching minority owned suppliers, contractors, and other business partners who may have been overlooked in the past. This plays a big part in how an industry can change, region by region, decision by decision.
EEOC Protections Against Employment Discrimination for Service Members and Veterans
Jointly Authored By:
U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP)
U.S. Department of Labor Veterans’ Employment and Training Service (VETS)
U.S. Department of Justice Civil Rights Division (CRT)
U.S. Equal Employment Opportunity Commission (EEOC)
Service members and veterans have made great sacrifices to guarantee the freedoms and liberties that all Americans enjoy. And service members and veterans themselves are also guaranteed rights, such as the right to be free from discrimination in civilian employment. This document helps explain where to get help if you are a service member or veteran and you feel that you have been discriminated against in employment because of your military status, veteran status, or another protected basis.
Veterans and Service Members are Protected Against Employment Discrimination
Two federal laws prohibit discrimination in employment based on your status as a service member or veteran:
Additional federal laws prohibit employment discrimination against applicants and employees for other reasons that veterans and service members may face, including:
- The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits civilian employers from discriminating against you based on your present, past, and future military service. It also entitles service members, such as National Guard members and reservists, who leave their civilian employment to perform covered military service to prompt reemployment with their pre-service employer following the completion of their duty. This means that service members who meet the eligibility criteria for reinstatement must be promptly reemployed with their pre-service employers with the seniority, status, and rate of pay that they would have obtained with reasonable certainty had they remained continuously employed.
- The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA)prohibits federal contractors and subcontractors from discriminating in employment against protected veterans and requires employers take affirmative action to recruit, hire, promote, and retain these individuals. This protection against discrimination extends not only to spouses, but also to other individuals that the contractor knows have a relationship or association with a protected veteran.
- The Americans with Disabilities Act of 1990 makes it illegal for employers to discriminate against qualified job applicants and employees based on their physical or mental disabilities, including failing to provide a reasonable accommodation to a qualified employee orapplicant. Section 501 of the Rehabilitation Act of 1973 applies the same standards to federal agency employers.
- Section 503 of the Rehabilitation Act of 1973 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities, including failing to provide a reasonable accommodation to a qualified employee or applicant. It also requires employers to take affirmative action to recruit, hire, promote, and retain these individuals.
Employers are also prohibited from retaliating against you, for example threatening to withhold a promotion or firing you, for asserting your rights under these laws or otherwise participating in protected activity. Examples of protected activity include filing a complaint or participating in an investigation.
- Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity), and religion.
- The Equal Pay Act of 1963 requires that men and women in the same workplace be given equal pay for equal work.
- The Age Discrimination in Employment Act of 1967 protects people who are 40 or older from discrimination because of age.
- The Genetic Information Nondiscrimination Act of 2008 prohibits discrimination based on genetic information (which includes family medical history).
- The Immigration and Nationality Act’s Anti-Discrimination Provision prohibits discrimination based on citizenship, immigration status, and national origin (for certain employers not covered under Title VII).
- Executive Order 11246 prohibits federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin and requires affirmative action to promote equal opportunity. Contractors also are prohibited from discriminating against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others, subject to certain limitations.
Do You Qualify for USERRA’s Reemployment Rights?
To qualify for USERRA’s reemployment rights, you must be a service member and generally meet the following eligibility criteria:
More information on who qualifies for USERRA protections can be found on the VETS and CRT webpages.
- You must have left a civilian job to perform covered service;
- You must have given notice to the employer that you were leaving to perform military service (orally or in writing);
- You have had five years or less of cumulative service with the covered employer (although there are a number of exceptions to this rule);
- You must not have a disqualifying discharge (dishonorable, other than honorable, or bad conduct); and
- You must have reported back to work within the appropriate time constraints (which are dependent on the time spent on covered military service).
How Do You Assert Your Rights Under USERRA?
You can seek assistance for enforcing your rights under USERRA with the federal government, or by filing a lawsuit directly in court with your own lawyer.
VETS investigates and resolves complaints of USERRA violations. For assistance in filing a complaint, or for other information on USERRA, visit the VETS website. An interactive online USERRA Advisor is also available here.
If you file a complaint with VETS and the agency is unable to resolve the matter to your satisfaction, you may request that your case be referred to the Department of Justice or the Office of Special Counsel, as applicable, for representation.
CRT has authority to bring lawsuits against private, state, and local government employers for violations of USERRA but only upon receiving complaint referrals from VETS. If CRT lawyers are reasonably satisfied that the service member is entitled to relief after receiving a referral, CRT may commence an action in federal court.
Please note that CRT may not be able to bring a lawsuit in every case that is referred to it but reviews every referral carefully. For more information, please see the Department of Justice’s Servicemembers and Veterans Initiative webpage.
Do You Qualify as a “Protected Veteran” Under VEVRAA?
Under VEVRAA, if you served active duty in the U.S. military and were discharged or released for reasons other than dishonorable you may be a protected veteran in one or more of the following categories:
More information on VEVRAA protections is located on the OFCCP VEVRAA website. OFCCP’s Infographic includes information on who qualifies as a protected veteran.
- Disabled veterans
- Recently separated veterans
- Active-duty wartime or campaign badge veterans
- Armed Forces service medal veterans
How do You Assert Your Rights Under VEVRAA?
You can file a complaint with OFCCP if you believe your rights as a worker have been violated or if you believe a federal contractor has been discriminatory in its practices. OFCCP is committed to workers’ rights and will investigate complaints filed against federal contractors.
More information on filing a complaint with OFCCP can be found here. You can also find additional information on protected veterans’ rights here and on worker.gov.
Which Agency Should You Contact for Assistance with Employment Discrimination on Other Bases?
Contact the EEOC if you believe you have been discriminated against by an employer, labor union, or employment agency as an employee or applicant because of your race, color, national origin, sex (including pregnancy, sexual orientation, or gender identity), religion, age (over 40 years old), disability, genetic information, or in retaliation for opposing a prohibited practice or participating in an equal employment opportunity matter.
Contact OFCCP if you believe that you have been discriminated against by an employer doing business with the Federal Government based on race, color, religion, sex, sexual orientation, gender identity, national origin, or disability. You can also contact OFCCP if you asked about or discussed your pay or that of a co-worker and you were fired, demoted, or disciplined because of it.
Contact CRT’s Immigrant and Employee Rights Section if you believe that you have been discriminated against by an employer because of your citizenship, immigration status, or national origin.
Do You File a Charge or Complaint Alleging Discrimination with EEOC or OFCCP?
Contact EEOC to file a charge if you believe you have been discriminated against, harassed, or subjected to retaliation by an employer. Most of the laws enforced by EEOC require you to file a charge before you can file a discrimination lawsuit. In addition, an individual, organization, or agency may file a charge on your behalf in order to protect your identity. EEOC’s website provides more information on filing a charge, including links to its online public portal and important time limits. Federal employees and job applicants have similar protections but follow a different complaint process.
Contact OFCCP to file a complaint if you believe your rights as a worker have been violated or if you believe a federal contractor has been discriminatory in its practices. OFCCP is committed to workers’ rights and will investigate complaints filed against federal
contractors. OFCCP’s website provides more information on filing a complaint.
CRT works with the EEOC and OFCCP to enforce laws such as Title VII, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act. The EEOC and OFCCP may refer certain charges of discrimination to CRT for enforcement, including where the employer is a state or local government entity.
Other CRT-DOL-EEOC Resources for Protecting the Rights of Veterans and Service Members
CRT’s Servicemembers and Veterans Initiative website has more information about other rights and protections, including those related to finance and housing, voting, consumer protection, disability status, and more. You can also contact CRT to submit a report if you believe your civil rights, or someone else’s, have been violated here.
OFCCP’s website contains information about programs that provide services and support to veterans and their families addressing employment, education, housing, medical, and other topics. VEVRAA also requires federal contractors and subcontractors to take affirmative action to recruit, hire, promote, and retain veterans. More information can be found here.
VETS’s website includes additional resources for veterans and military spouses, including off- base transition training, information on apprenticeship and the civilian transition, and veteran unemployment rate information. The Department of Labor also provides more information on its veterans employment website.
EEOC’s website provides more information for veterans with disabilities, including a resource document that helps explain your workplace rights and responsibilities. Additional information on the Americans with Disabilities Act and mental health conditions can be found here.
Federal Agency Partners Issue Resource Document for Military Service Members & Veterans Facing Employment Discrimination
WASHINGTON- The U.S. Equal Employment Opportunity Commission (EEOC) today released a resource document, “Protections Against Employment Discrimination for Service Members and Veterans,” describing federal protections from unlawful employment discrimination against service members and veterans.
The document, jointly-authored by the EEOC, the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP), the U.S. Department of Labor Veterans’ Employment and Training Service, and the U.S. Department of Justice Civil Rights Division, details federal laws and other authorities that provide workplace protections specific to service members and veterans. For the first time, it provides a single publication to help veterans and service members determine which laws and federal agencies are responsible for enforcing their workplace rights and where to seek assistance if they believe those rights have been violated.
“Our military members sacrifice immensely to keep our country safe, and whether they are actively serving, reservists, or veterans, we must ensure they know their workplace rights and how to enforce them if they experience discrimination.” said EEOC Chair Charlotte A. Burrows. “This document clearly explains that they are protected from discrimination because of their military service, veterans status, disability or other reasons, such as their race, religion, national
origin, sex (including pregnancy, sexual orientation or gender identity), age, or genetic information.”
That’s why the EEOC has issued updated guidance for employers about the different contexts in which caregiver discrimination can arise. It’s also why it’s critical that every employer be aware of these various contexts.
Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division said, “We owe our servicemembers, veterans, and their families a deep debt of gratitude for their service to our country. Through rigorous enforcement of federal civil rights laws, the Justice Department is working hard to ensure that the rights of our brave servicemembers and veterans are safeguarded from discrimination and unfair treatment.”
OFCCP Director Jenny Yang added, “OFCCP is pleased to release this important resource on employment discrimination protections for service members and veterans with VETS - at the Department of Labor -- and our sister federal civil rights agencies. As the federal government makes historic investments in infrastructure, manufacturing, and technology, OFCCP is playing a central role in ensuring that the nation is utilizing the full talents of all workers, including our nation’s protected veterans.”
Assistant Secretary for Veterans’ Employment and Training Service James D. Rodriguez stated, “We must continue to defend our nation's heroes against discrimination in the workplace.
Anyone’s commitment to our military should not be a barrier for success in the civilian workforce. We are proud to partner with our fellow federal agencies to protect servicemembers and veterans in the workforce.”
In addition to providing information about laws that specifically protect service members and veterans, the document explains general protections from retaliation, disability discrimination, sexual harassment, and other covered bases.
EEOC provides new guidance on caregiver discrimination
As every employer has seen, the COVID-19 pandemic has caused changes to employees’ work locations, schedules and job status, affecting their work and personal obligations.
This has resulted in competing job and caregiving demands for millions of Americans who must care for children, spouses, parents and other loved ones.
The U.S. Equal Employment Opportunity Commission, the federal agency that investigates and addresses job discrimination in all its forms, is well aware of the temptation of employers to take negative employment actions against those workers whose caregiving responsibilities potentially create inconveniences for them.
Here’s a helpful summary of some of the guidance the EEOC has provided.
First, it’s important to note that being a caregiver does not automatically bar an employer from taking adverse action. But employers may not discriminate based on a worker’s membership in a “protected class” like race, religion, sex, disability, age or pregnancy. Usually, a caregiver discrimination case falls into one of these areas.
For example, it’s prohibited under federal law to discriminate in the workplace based on sex. Still, some employers engage in stereotyped thinking and pass over female job applicants or overlook female employees for promotion because they assume they’re more likely to need to stay home if their kids get sick or have to attend school remotely. Similarly, an employer may deny caregiving leave to a male employee based the stereotyped assumption that his spouse can handle the situation, while granting leave to female workers under the same scenario.
These would both be actionable discrimination cases.
Meanwhile, an employer could face claims of disability discrimination under a variety of scenarios. For example, denying unpaid leave to care for a relative with “long COVID” symptoms while approving unpaid leave for other conditions could qualify as disability discrimination. So could denying a promotion to a worker with a family member whose condition worsened during the pandemic if this was done under the assumption that the employee won’t have as much time to devote to the job.
Meanwhile, employers who engage in certain behaviors could potentially face consequences under federal law. For instance, an employer who criticizes a male employee for leaving to care for a child or asks intrusive questions of an LGBTQ+ worker who requests leave to care for a same-sex spouse or partner could face claims of gender-based harassment.
There are many other situations where negative treatment of a caregiver could result in liability under discrimination law. That means it’s critical for every employer to have up-to-date discrimination and harassment policies regarding caregiver issues and to make sure all managers are properly trained. Consulting with a local employment attorney to review your policies and practices would be very helpful in this regard.