The U.S. Equal Employment Opportunity Commission on Apr. 28 held a hearing on the civil rights implications of the COVID-19 pandemic. The hearing was aimed at helping the commission create better COVID-related guidance for employers and workers.
During the all-virtual hearing, dozen expert witnesses representing civil rights groups and employers discussed how the pandemic has affected women, people of color, people with disabilities, older worker and other protected groups.
Heidi Shierholz, senior economist and director of policy at the Economic Policy Institute, presented a broad overview of the pandemic’s impact on the labor market. She noted that although jobs are returning, “we still have 8.4 million fewer jobs than we did before the recession.” According to Shierholz, the adjusted unemployment rate is 9.1%, but the rates for Black and Latino workers are 13.4% and 11.5% respectively.
John Yang of Asian Americans Advancing Justice spoke about the impact of anti-Asian racism and noted that, according to a McKinsey report, fears about the virus “effectively shuttered businesses in many Asian American cultural districts” a month before lockdowns began nationwide. According to Yang, Asian American unemployment jumped from 3.4% in February 2020 to 25.6% in May 2020.
Fatima Goss Graves of the National Women’s Law Center discussed the pandemic’s effect on women, who are overrepresented in frontline jobs and have faced sex-based discrimination due to caretaking duties. She cited studies that found mothers of young children were four to five times more likely to have to reduce or adjust their work schedules due to caregiving than fathers.
Former U.S. Commissioner on Disabilities Julie Hocker said that even before the pandemic, the labor force participation rate for Americans with disabilities was low at 21%, compared to 63% for the general population. Hocker added that in the first months of 2020, one in five disabled people lost their jobs, compared to one in seven for the general population.
Laurie McCann of the AARP Foundation told the commission that for the first time since 1973, workers 55 and older face persistently higher unemployment rates than workers aged 35 to 54, and in January almost half of job seekers 55 or older were long-term unemployed. She also warned of an “alarming trend toward earlier retirement.”
The commission also heard from Mónica Ramírez of Justice for Migrant Women. She spoke about COVID’s effects on migrant workers and farmworkers, who have faced high rates of COVID infection and death. Eric Henson of The Harvard Project on American Indian Economic Development discussed the pandemic’s impact on tribal communities, which suffer from underinvestment from the federal government and have been hit hard by closures of tribal enterprises.
“Today’s testimony makes clear that, while the pandemic continues to have serious impacts on public health and our economy, it has also created a civil rights crisis for many of America’s workers,” said EEOC Chair Charlotte Burrows.
Asking for Guidance
According to EEOC Vice Chair Jocelyn Samuels, the testimony will help the EEOC create “clearer, more relevant guidance” on COVID-19 issues for employers and workers. The EEOC last updated its pandemic-related guidance in December, when it clarified questions about vaccination requirements in the workplace.
Commissioner Keith Sonderling noted that advances in recent months regarding safety precautions, vaccinations and scientific knowledge of the virus have led to “many novel questions” requiring additional EEOC guidance on topics such as vaccine incentives, recalling furloughed workers, employee objections to vaccination policies and how to handle issues around COVID-19-related accommodation requests.
Employers and industry groups have been urging the EEOC to issue guidance on vaccine incentives for months. In early January, the EEOC proposed rules for wellness programs that employers expected would clear up uncertainty about whether vaccine incentives fall afoul of the Americans with Disabilities Act and other anti-discrimination laws. But the proposed rules were withdrawn less than a month later.
Several of Wednesday’s panelists asked the commission to issue guidance on vaccine incentives. Michael Eastman of the Center for Workplace Compliance recommended the EEOC address vaccine incentives “without wading too deep” into broader debates about wellness plans, which he said have become “contentious.”
Commissioners asked Eastman and Johnny Taylor, Jr. of the Society for Human Resource Management what kinds of incentives their employer members are offering or considering offering. Their answers ranged from cash incentives to paid time off and items such as mugs and T-shirts.
The witnesses also asked the commission for guidance on harassment that addresses pandemic-related changes. “People might be under the misimpression that just because people are working virtually, harassment doesn’t occur,” said Goss Graves. “It occurs. It just happens virtually.” She added that she hopes future guidance will include “reminders about retaliation,” noting that many people experiencing harassment are also experiencing retaliation.
The EEOC proposed harassment enforcement guidance in early 2017, but it was not given final approval under the Trump administration. At a press conference following the hearing, Burrows was asked whether the EEOC has plans to revisit the harassment guidance. “I do recognize that it’s important and I think that is something that we would like to move on soon,” she said.
Caregiving is another area where the panelists wanted to see EEOC guidance. Taylor urged the commission to provide guidance and incentives for employers to “embrace and support” caregivers. Goss Graves said employers need guidance on accommodating workers with caregiving duties, including extending telework policies, giving workers more control over their schedules and modifying rigid attendance policies.
Brian East, senior attorney with Disability Rights Texas, said that “it’s a negative that the EEOC has not really spoken on whether COVID-19 is itself a disability” under the ADA. He said he has seen a number of cases in which the employer is discriminating because of someone having COVID, “and we need to know whether that is protected.”
Damon Hewitt of the Lawyers’ Committee for Civil Rights Under Law noted in written comments to the EEOC that people of color are more likely to be frontline workers and suffer the long-term effects of COVID-19. “Accordingly, the EEOC should ensure that those who suffer from ‘long COVID’ are able to enjoy protections under the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973,” Hewitt wrote.
Panelists and commissioners also raised concerns about the role of artificial intelligence and algorithms in the hiring process. Commissioner Andrea Lucas pointed out that the software employers use to screen or sort applicants could automatically disqualify those with gaps on their resumes due to caregiving. Lucas asked Goss Graves how the EEOC should approach the issue.
“It could be that some employers believe that they have just outsourced their approach entirely,” Goss Graves said, adding that the EEOC should remind the employer that “outsourcing, even through the use of technology, doesn’t relieve it of its obligations and to ensure that its policies don’t have a disparate impact on women.”
McCann of the AARP Foundation also touched on the issue of technology and hiring. Some employers use software and recruiting websites to show them potential employees that might be a good fit, she said, but if they respond positively to one young potential recruit, “the algorithm is just going to look for more young workers.” McCann also raised concerns about digital platforms that require job applicants to enter graduation dates, and she asked the EEOC to prohibit selection criteria or algorithms that could have the effect of filtering out older candidates.
“Both before the pandemic and continuing to this day, the reliance on algorithmic approaches and some of the more recent developments with respect to technical ways to hire have been really important for us to keep a watch on and they have been on our radar,” Burrows said during the press conference.
An EEOC spokesperson said in an e-mail she was unable to provide information on the timing of the commission’s next technical assistance document. During the hearing, commissioners asked Taylor and Eastman when employers are planning to bring employees back to the workplace. They said they expect many workers to return over the summer with the largest number returning just after Labor Day.