Welcome back. The U.S. Equal Employment Opportunity Commission, over the course of the past two years, has collected from employers almost a billion dollars in monetary relief for victims of employment discrimination. Keith Sonderling, a former employment lawyer in Florida who was appointed as an EEOC commissioner in 2020, spoke to WSJ’s The Workplace Report about employment discrimination during the pandemic, diversity policy and the role of artificial intelligence in human resources. Here are edited excerpts:

WSJ: You get to see the trends in employment discrimination nationwide. From your perspective, what are some that HR should be most concerned about?

Mr. Sonderling: Year over year, 56% of EEOC cases charge retaliation, making it the most common claim. Many claims start with a charge of discrimination, followed by a charge of retaliation because the employee in question experiences an adverse employment action, such as being demoted, fired or otherwise penalized, for making a claim of discrimination. This is surprising to many people, but the next most common filed claim is disability discrimination, with more charges than [those for] racial/ethnic discrimination.

I want to commend HR teams, because when they developed policies as a result of #MeToo, the EEOC’s claims of sexual harassment fell to their lowest levels in 25 years of EEOC data collection.

HR can avoid problems with effective policies with buy-in from leaders and education on best practices. For example, your company needs to have an open-door policy for reporting discrimination claims so the EEOC can investigate any claims without the fear of retaliation toward the employee.

WSJ: How has the pandemic affected the volume and type of discrimination cases filed with the EEOC?

Mr. Sonderling: Covid-19 presented new issues that we never had to deal with before, such as mass testing and excluding people from the workplace if they had a cold. In an 18-month period, the EEOC had more than 6,000 Covid-19-related charges of discrimination, a majority of which involved the failure to accommodate an employee’s disability. Requiring reasonable accommodation to telework from home is one such charge.

Overall, we are seeing a decrease in discrimination cases since the pandemic started. This is a good thing.

WSJ: Most organizations are trying to hire more diverse employees. What are the best practices to do this?

Mr. Sonderling: HR must clearly communicate to the workforce that protected characteristics such as age, race, religion and disability have nothing to do with one’s ability to get the job. Your company mission should be aligned with the EEOC’s mission, meaning that everyone applying has an equal opportunity to thrive in your workforce. Employment is based upon skills rather than on factors workers can’t control. Just like you can’t fire somebody based on their race or religion, you also can’t hire them for that exact reason. It goes both ways.

WSJ: As new laws and court decisions are made, when does the EEOC step in to offer an opinion?

Mr. Sonderling: It depends on what the law or decision is. Sometimes, a new law is passed and Congress requires us to fill in the gaps through rulemaking, resulting in additional regulations. Sometimes, they specifically say we can’t do anything and [that we] can only implement the law without further regulation. It’s the same thing with the courts. Sometimes, they say the EEOC needs to fix or completely strike down something [it] passed and try again, basically.

WSJ: After an EEOC decision, how does the agency ensure its enforcement and compliance?

Mr. Sonderling: In my experience, the vast majority of HR departments want to do the right thing and just need the tools to comply. As the agency responsible for enforcing the laws that govern HR, the EEOC is in the best position, and has a responsibility, to provide them with the answers to the most complicated matters. For instance, when the EEOC resolves a large systemic case of discrimination on a novel issue, it is important that we not only internally train our investigators to be able to identify such issues in the future, but also that we provide guidance to HR departments and teach them how to prevent such issues from occurring at their companies.

WSJ: Can you share the EEOC's current guidance around artificial intelligence and algorithmic decision making, and their use in hiring?

Mr. Sonderling: There are so many positive uses of AI. The idea here is if we take the human out of employment decisions, we won’t have the bias that leads to discrimination. This can work, provided AI tools are properly designed and used carefully and with human involvement.

On the other hand, an ineffective AI tool can scale discrimination larger than we’ve ever seen before. We need to develop and use AI in a way that complies with long-standing civil rights. The decisions AI makes are still subject to federal employment laws. Employers can’t forget that if the technology makes a mistake, ‘the robot did it’ isn’t a defense. The organization is still liable.

When making choices about what you can totally automate, keep in mind the role that human managers need to play in determining what workers need. In the process of judging worker performance, algorithms lack a human manager’s context and can make decisions that open the organization up to potential disability claims.

WSJ: More organizations are contending with situations in which employees must shift their employment arrangements because of caregiving responsibilities. What do leaders need to watch out for here?

Mr. Sonderling: First, just being a caregiver doesn’t rise to the level of discrimination under our laws. However, our laws do protect employees from discrimination based on stereotypes of what a caregiver does. For instance, there may be unlawful gender discrimination based on a female worker’s perceived caregiving responsibilities. Similarly, you can’t discriminate against a male based on the stereotype of him being the breadwinner. Since this issue is now front and center, organizations should understand what discrimination is and what [it] isn’t, and the EEOC has guidance to help.

According to an early June 2022 survey of HR professionals conducted by the Society for Human Resource Management Research Institute, employers were re-evaluating employee benefits and leave policies shortly before the anticipated U.S. Supreme Court decision overturning Roe v. Wade.

When asked to name the top resources or benefits they currently provide to employees to better support reproductive care, which includes abortion access, 32% of respondents mentioned paid time off to access reproductive care and 33% said they offered paid or unpaid time off to attend protests or demonstrations in support of reproductive rights.

Over one-third of organizations wouldn't be more likely to provide travel expense benefits, such as gasoline, airfare and hotel fees, outside of a health savings account, or HSA, for employees to access abortion and reproductive services, even if those payments were tax-deductible as a business expense related to health coverage.

Because employees can use HSA funds for travel-related expenses to receive reproductive care in another state, 24% of respondents who don’t currently offer HSAs said they are likely to adopt one.

Twenty-nine percent of respondents planned to increase support within an employee assistance program for abortion access/reproductive care, while 13% said they would increase women’s reproductive coverage in employee healthcare benefits.

Read SHRM’s guidance for navigating Roe v. Wade in the workplace here.

This summer is proving to be a season of staffing headaches.

A rise in Covid-19 absences in recent weeks amid the spread of the BA.5 subvariant, combined with planned time off, has left restaurants, hotel chains, manufacturers and other workplaces struggling to keep operations running this summer. At some companies, bosses say, staffing is harder now than at any previous stage in the pandemic. Reasons include high Covid-19 infection rates, vacation season converge and a longstanding labor shortage.

• For the period from June 29 to July 11, 3.9 million Americans said they didn’t work because they were sick with Covid-19 or were caring for someone with it, according to Census Bureau data. In the comparable period last year, 1.8 million people missed work for those reasons.
• Many workers also are taking vacations that they put off over the previous two years. According to the Labor Department, 4.8 million workers took vacation or personal days during the week of the Census Bureau’s June household survey this year, compared with 3.7 million workers who were taking time off in the comparable period last year.
• Those factors, along with the continuing labor shortage that has left many companies understaffed for the better part of two years, mean employers are stretched thinner than usual and struggling to keep operations going. The national unemployment rate has been hovering around 3.6% for four straight months.

• As the Global Population Approaches 8 Billion, Is Equal Access to Opportunity for All Possible? (World Economic Forum)
• Who Are the 1 Million Missing Workers That Could Solve America’s Labor Shortages? (Brookings Institution)
• Women Account for 27% of Federal Tech Workforce, EEOC Study Finds (Fedscoop)
• Complying With New York's AI Employment Law and Similar Regulations (Mondaq)                            
• FTC Report Warns Against Overconfidence in AI Tools to Combat Online Harm (JD Supra)

Alexandra Levit is a business and workplace author and speaker. Chitra Vemuri curated and edited this newsletter.

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