By Dan Gephart, October 18, 2022
These two words are probably not among the first to spring to mind when you think of the Equal Employment Opportunity Commission. But EEOC Commissioner Keith Sonderling has a whole lot of statistics to explain why they should be.
Let’s look at FY 2021, the last year for which data is currently available. The EEOC collected a total of $485 million for more than 15,000 victims of discrimination. Out of that large sum, almost $100 million went to 2,169 Federal employees.
“When I speak across the country and I talk about that statistic, people are shocked,” EEOC Sonderling said. “That’s a big chunk of change from an overall picture.”
What about efficiency? Try on this statistic: The 7,664 hearing requests received in FY 21 was a decrease of 6.2 percent from the previous fiscal year. This can be partly attributed to the resolution of 9,082 complaints by the Commission’s hearings program. “Getting 9,000 complaints out the door, that’s really efficient.”
Meanwhile, employees took advantage of the EEOC’s free mediation program. More than 600 Federal sector mediations were conducted, resulting in another $8.4 million for Federal employees and applicants.
“We’ve seen a lot more interest in mediation since the pandemic when we went virtual,” Sonderling said. “Before, you had individuals hesitant to enter mediation. Think of an old-school mediation. You go into a conference room with the person who discriminated against you and your old boss. You never want to see these people again. It’s traumatic. But virtually, you can be in a separate breakout. You don’t even have to see the people.”
The EEOC has been criticized in the private and Federal sectors about case backlogs. Progress is being made there, too, according to Sonderling. In the Federal sector, the aged inventory was reduced by 11.5 percent. And resolutions result in a 6 percent reduction of cases that were more than 300 days old.
“The reduction of pending and aged inventory will have a positive impact on the agency’s ability to more timely process the hearings complaints received and better serve participants in the hearings process.”
The agency is developing its next Strategic Enforcement Plan – an important document that will determine the Commission’s priorities for the next five years. The last strategic plan was approved in 2016. It set the EEOC’s focus over the past five-plus years on, among other things, eliminating barriers in recruitment and hiring, protecting vulnerable workers in underserved communities, ensuring equal pay, and preventing systemic harassment.
Why is this important? Of the EEOC’s 99 findings of Federal sector discrimination in FY 2021, 83 were “identified as implicating one or more Strategic Enforcement Plan priorities, including numerous decisions addressing equal pay or other wage discrimination issues.”
There have been three hearings on the new SEP, all are available on the EEOC’s YouTube page. There will be an opportunity to submit formal comments through the Federal Register. As the agency looks forward, we thought it was a good time to check in with Commissioner Sonderling (pictured at top next page) about priorities, trends, and more. “The most important thing for me and, I think, for all of us at the EEOC is to ensure that the Federal government is leading in creating an inclusive, barrier-free workplace because the US government is the largest employer in the country,” Sonderling said. “It’s important for Federal government to be the model employer. That falls on the EEOC to give guidance to the agencies compliance assistance to prevent discrimination and also from an enforcement perspective when discrimination occurs.
DG: Charges of discrimination are down. Why is that?
KS: I’d love to say it’s because (employees are) realizing employers are trying to do the right thing and prevent discrimination from occurring. Or that the EEOC has provided enough information to employees to know what happened may not have been discrimination. Also, too, with the economy we have now and so many jobs available, instead of going down this very long road of filing charges of discrimination, they may give up because they got another job and think, “I don’t need this anymore.”
DG: Reprisal continues to be a major problem for agencies. Based on the cases before you, what can agencies do best to limit reprisal?
KS: Well, let me tell you: It’s not just the Federal government. It’s across the board. It’s the number one filed alleged basis of discrimination in the United States. Hands down. Those are the most claims. It’s a persistent thing.
It’s not just at EEOC and in the discrimination context. The NLRB has retaliation provisions. Department of Labor, OSHA has provisions, as well.
Back in 2016, the EEOC put out broad guidance and tried to define reprisal very broadly. It’s treating employees differently because they complained about discrimination on the job, filed a complaint, participated in any manner in a charge or proceeding — theirs or someone else’s. Second, something negative has to happen
to your employment, generally, in addition to just filing charge of discrimination. What happens if you’re resisting sexual advances? Or you requested an accommodation for disability or religion? Did your work situation change in an adverse way once that occurred?
For agencies, it’s really just maintaining plain language anti-retaliation policies.
We simplified the definition in our guidance available to the public. Federal agencies’ policies and retaliation reporting procedures must do the same, just make it simple. Make it so plain language with examples of what is retaliation and what is not retaliation.
If you are fired or demoted because you are not performing well at work, you’re not hitting your goals, or just not doing the job, that’s not retaliation. But, if you are fired or demoted because you were sexually harassed or filed a charge, that’s a different story. Make it clear: This is retaliation, and this is not.
And it must come from the top. We saw this really changed with the MeToo movement. When the movement happened, it was national news. Harvey Weinstein and offending CEOs were fired. New management teams came in: What was the first message they were saying? From that CEO level, they were saying: “We’re not going to tolerate this harassment. We’re willing to fire the CEO. We’re willing to fire our rainmakers, our best performers if they are sexually harassing. And the same needs to happen here. In cabinet agencies, it needs to come from the top. It needs to come from the highest career SES, the cabinet secretaries themselves, the leaders of the agencies. This is just not going to be tolerated. We have an open-door policy. If you feel like you’re being harassed, here’s the mechanism we put in place in our agency. If you don’t feel comfortable going to that, here are alternate ways to report harassment, so you’re not dealing with the harasser or the direct manager. You can go to neutral HR or the civil rights office in your agency and not have that fear of reprisal.”
DG: Policies are important.
KS: Let’s make them easier to understand, and let’s have that commitment come from the top. So that from very first day, they know the leader of the agency is against this and it’s part of the culture at this agency.
That’s my best advice.
DG: Federal agencies often require a bar on reemployment as a term in an EEO settlement agreement for an employee who no longer works at the agency and filed an EEO complaint. Does the EEOC have a position on whether such clauses constitute retaliation per se?
KS: Yes, the EEOC has dealt with this. And the Supreme Court has dealt with this in the private sector. They basically said: Look, it’s a contract and the parties in the settlement agreement or consent decree or however you get there, if you agree to this no re-hire policy, if it’s very clear and if it’s a legitimate nondiscriminatory reason for refusing to re-hire, then it’s valid. That is the key.
Even if settling claims of discrimination, if you’re putting in no-hire provisions, they should be explainable, and if it is later challenged, you may have to be able to provide the reasons the no-re-hire position was related to legitimate nondiscriminatory reasons. Basically, it’s a contract claim. However, Courts will not enforce contracts about future discrimination. So even in the event you have a no-rehire clause and you re-hire the individual, you cannot waive future claims of discrimination.
The EEOC dealt with this in 2003 in a Federal sector opinion [Jablonski v. NLRB, EEOC Appeal No. 01A23730]. That was a case of an employee against NLRB. We upheld that a no re-employment clause in a settlement agreement with a former employee was valid. The agency also declined to impose a reasonable limitation on the no-rehire period.
Like the Supreme Court, the EEOC finds that settlement agreements are contracts between the complaint and the agency. If the intent of the party is in the contract, that’s what’s going to control. We rely on the plain meaning of the contract.
Where confusion arises when settling with current employees is waiving future claims of discrimination, including retaliation that has not yet occurred. Even if you had that no re-hire, and agency goes and prevents you from getting another job, that’s still retaliation.
DG: What impact did the pandemic have on employees with disabilities?
KS: Employees with existing disabilities have been largely impacted by the pandemic. For instance, they had a disability before and now the disability is more severe and now they need additional accommodations. Or, you have Federal workers who weren’t disabled and now need those accommodations because of long haul COVID.
So many Federal workers who were not disabled suddenly have become disabled post-COVID and we’re seeing that across the board, related to long haul COVID.
We’ve given out a lot of guidance on this to help Federal agencies make that determination: What is a disability now post-COVID? What is long haul COVID? Our guidance has very specific examples of the types of long haul COVID, like needing supplemental oxygen, having heart-related issues, severe fatigue, heart palpitations versus what is not COVID — a cold, congestion, sore throat.
I think the Federal agency EEO/Accommodation manager will be flooded with these requests, especially as more employees come back to the office.
[Editor’s note: Join FELTG for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency on Nov. 17, from 1-3 pm ET.)
DG: Technology is accelerating at such a fast pace, especially workplace technology. Is accessibility to this technology keeping up the same pace?
KS: In the private sector, companies are rapidly implementing technology like artificial intelligence to make decisions about their workforce, whether to recruit, whether to hire. The future is now.
A big concern is that workers with disabilities have the same ability to use these platforms with their disability as they would any kind of screening test. Federal agencies have had these assessment tests for decades, and a lot of them are going online. The agencies know they must accommodate both applicants and employees who are being subject to these tests.
The technology can certainly affect workers with disabilities when it comes having to do your interview online or having to take your test online.
Make sure these newer technologies don’t discriminate against any of the categories we enforce here, especially workers with disabilities. Outside of retaliation, disability discrimination is our number one cause of action in the private sector. Employers using these technologies should go through the same interactive process on the front end for applicants and during the life cycle, so employees feel comfortable asking for requests without fear they’re not going to get the job because they’re not using the program the employer spent a lot of money on buying and implementing.
With artificial technology in the ADA space, there are three takeaways:
- It needs to provide reasonable accommodation.
- The tool can’t intentionally or unintentionally screen out employees with disabilities.
- Make sure these tools are not seeking disability-related inquiries or not medical examinations and relevant to the job.
These are the same principles we know for reasonable accommodation, but they can’t be lost here. With HR technologies, you can’t have that set-it-and-forget-it approach.