On April 28, 2021, the Equal Employment Opportunity Commission (EEOC) held an open virtual hearing, including testimony from experts on employment discrimination and barriers to employment during the COVID-10 pandemic. The meeting included opening remarks from each of the commissioners, and testimony from twelve panelists. Commissioners questioned the panelists following their testimony.
The hearing was convened to examine the workplace civil rights implications of the COVID-19 pandemic, to identify the issues, and to provide updated guidance for employers and employees working through the pandemic. Opening the meeting, EEOC Chair Charlotte A. Burrows stated that the pandemic presents not only a public health and economic crisis, but also a civil rights crisis. “While every single one of us has experienced challenges during this pandemic, it's important to recognize that the pandemic hasn't impacted everyone in the same way, the COVID-19 crisis has exposed and intensified existing inequalities in our society.”
Chair Burrows stated that the EEOC’s goal is to keep employees and employers safe and up to date with the latest public health announcements, and to understand specific equal employment opportunity issues arising as a result of COVID-19. The bipartisan commission will examine the issues highlighted during the meeting, which will inform and assist the EEOC’s “continuing efforts to better serve the American people.”
With the dual pandemics of COVID-19 and anti-Asian hate and violence sweeping through Asian American communities nationwide, Asian American workers face significant challenges, including threats to both their lives and their livelihoods.
The 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 Burrows. “All of us have a critical role to play in our economic recovery. We must come together to ensure that all employees can work free of discrimination and that everyone who wants to work has equal employment opportunities.”
The Commission heard testimony from a dozen panelists who comprised experts on a range of civil rights issues. The following is a summary of the remarks from a many of the panelists.
Heidi Shierholz, Senior Economist and Director of Policy of the Economic Policy Institute, gave an overview of how job losses due to COVID-19 have disproportionately impacted women and people of color in front-line retail and service jobs. The data she presented demonstrated that the pandemic had disparate health impacts related to a person’s race, gender, disability and age. Shierholz stated that the “K-shaped recovery” is worse for more vulnerable populations: “Recessions always hit low- and middle-wage workers the hardest, but the unequal impact of the COVID-19 pandemic has been unprecedented.”
Testimony from expert John C. Yang, President and Executive Director of Asian Americans Advancing Justice, stressed how the pandemic had harmful effects on Asian Americans, including Asian-Americans being wrongly-blamed for the pandemic. He stated: “With the dual pandemics of COVID-19 and anti-Asian hate and violence sweeping through Asian American communities nationwide, Asian American workers face significant challenges, including threats to both their lives and their livelihoods.” Yang urged that training and education is key to ensuring that we prevent, de-escalate, and provide support when customers or employees become targets of hate incidents. He stressed that larger organizations can engage further and devote resources to practices which support the local Asian- American community in which they are serving.
Fatima Goss Graves, President of the National Women’s Law Center pointed out that women make up nearly two-thirds of frontline essential workers, putting their lives on the line, struggling to make ends meet, and yet earn less than men. She provided testimony that “women have borne the brunt of pandemic-related layoffs and job losses, and the pandemic has led to a sharp decline in women’s participation in the workforce, erasing decades of progress in the labor force participation rate.” Ms. Graves urged the Commission to take immediate action and issue EEOC guidance on this front, on how to “support and accommodate workers with caregiver responsibilities during the pandemic and in a post-pandemic world, including around extending telework policies, allowing employees to have increased control over their schedules and modifying rigid attendance policies.” Graves stated that employees need to know about the right to be “free from discrimination against gender stereotypes about caregivers.”
Finally, Graves urged the EEOC to clarify and remind employers that facially neutral practices can have an unlawful disparate impact if they disproportionately harm women because of their greater caregiving responsibilities.
Johnny C. Taylor, Jr., President and CEO of the Society for Human Resource Management (SHRM) stated that the pandemic “has presented some of the most critical, intensive, and urgent workplace issues HR professionals have ever experienced” including increasing the burden on working caregivers, noting that “nearly 20% of working Americans with caregiving responsibilities believe their professional development has been stifled during the pandemic because of their caregiving responsibilities.”
Taylor stated that, according to SHRM research, the pandemic has “disproportionately affected minorities, underrepresented minorities, older workers, people with disabilities, and especially women. Frontline workers and essential workers are predominantly women, very often, women of color, and they are leaving our workplaces. As of January 2021, more than 2.3 million women had left the U.S. workforce, bringing women's labor participation to its lowest rate since 1988.”
Taylor’s data revealed that older workers experienced greater instances of pandemic-related job losses, and, as of July of 2020, 13% had been laid off and over 1 million have now left the workforce permanently. Facing similar circumstances, nearly 40% of employees with a disability reported being laid off, furloughed, or forced to shut down their businesses due to COVID-19. About two-thirds of these workers expect “acute economic insecurity” over the next year.
Mónica Ramirez, Founder and President of Justice for Migrant Women highlighted the particularly severe effects of the pandemic on migrant and farmworker women.
Ramirez stated that migrant and farmworker women were called upon to continue to work — business as usual — to keep the world running. “Some of the least visible workers were deemed front-line and essential during this crisis. Front-line is an accurate moniker, given that they literally put their lives on the line for the benefit of all of us.” Ramirez stressed that many immigrant workers do not qualify for COVID-19 relief due to immigration status as guest workers, and as such, they are subject to the employer’s choices to “keep them safe in their housing, transportation and workplaces.”
Damon Hewitt, Executive Director of the Lawyers’ Committee for Civil Rights Under Law presented testimony about the disproportionate impact on workers of color, stating that the economic and employment issues exacerbated by COVID-19 will outlast the pandemic, and that “for over a year, workers of color have faced a horrendous choice: their lives or their livelihood,” Hewitt said. He urged the EEOC to “use its enforcement power to ensure that, as the economy slowly restarts, employment opportunities are available on an equitable basis.”
Julie Hocker, former U.S. Commissioner on Disabilities reminded the Commission that “many individuals with disabilities — particularly those with intellectual and developmental disabilities — are both more likely to work in essential workplaces and are also at a higher risk of severe illness from COVID-19 due to underlying health conditions co-occurring with their disabilities.”
In the 30 years since passage of the ADA, Hocker said, the “labor force participation rate for adults with disabilities has not increased,” and that the pandemic wiped out recent modest improvements in the unemployment rate for workers with disabilities. She further noted that workers with disabilities are often the last to be hired and the first to be let go during economic downturns. Ms. Hocker urged the Commission to release desperately-needed updated guidance for employers. Updated guidance should address employers’ responsibilities concerning reasonable accommodation, anti-discrimination efforts, and the broader changes anticipated regarding hiring, training, retaining and promoting workers, and greater flexibility for remote working.
Michael J. Eastman, Center for Workplace Compliance testified that the pandemic has dramatically impacted the workplace and that the challenges employers face today as they seek to maintain operations and prepare for a new phase of the pandemic, or even a post-pandemic environment, as diverse and complex. Eastman detailed challenges facing employers, including “how to keep the in-person workforce safe, whether to mandate vaccinations, and potential online harassment in the virtual environment.” Eastman urged the EEOC to help employers solve these problems, in particular by providing much-needed guidance to employers on how the nation’s civil rights laws apply during these unusual times.
Laurie McCann, Senior Attorney of the AARP Foundation said “[l]ike throwing jet fuel on a fire, the COVID-19 pandemic has amplified age discrimination as an obstacle to older workers’ efforts to find and keep jobs. The pandemic, which places older workers at greater risk of more serious illness than other age groups, and the recession that has accompanied it, have dealt devastating blows to the job prospects and future retirement security of older workers.” She noted that many older workers, especially women, may never fully recover from long-term unemployment.
Ms. McCann stated that many employers still post jobs that contain age-based qualifications or use age-related inquiries and screening procedures in their job application process, especially online. She concluded that the EEOC’s regulations “contain weak and internally contradictory language that does little to deter improper employer recruiting and hiring practices.” In light of these issues, she said, the AARP urges the EEOC to “revise its regulations, to make age-related inquiries presumptively unlawful, to reinforce that practices like maximum experience requirements are age-related, and to prohibit online job sites from requiring date of birth or graduation date to complete an application.”
EEOC Chair Burrows concluded the hearing by thanking all members and witnesses for providing thoughtful and absolutely invaluable insights, stating that the Commission views today's hearing as “the first of many conversations about the workplace civil rights implications of the pandemic and how we at the EEOC can best help advance our mission during these difficult times.”
The EEOC has not updated its COVID-19 guidance and technical assistance documents since the CDC’s May 13, 2021 release of its updated guidance for fully vaccinated individuals, although EEOC updates are anticipated. We will provide updates from the EEOC as soon as released. For the guidance currently available, visit EEOC.gov.
What can employers do now? Employers would be well-served to review their employment policies and procedures especially as they may impact workers of color, caregivers, women, older workers, people of faith, and employees with disabilities, particularly now during the pandemic and as more workplaces return to normalcy. Any review should include an evaluation of whether your policies and procedures are being administered consistently across the workforce.
For more information about the April 28, 2021 EEOC hearing, copies of the prepared testimony, or assistance with employment matters generally, please contact Diana Schroeher, at (301) 595-3520.