Author: Ashley D. Mitchell

Title VII and the Use of AI in Employment Decisions

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Employers are increasingly turning to artificial intelligence (“AI”) for assistance in making employment decisions, and although AI can eliminate disparate treatment, employers should be aware of the potential for disparate impact. Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination on the basis of race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), or national origin in employment practices (recruiting, hiring, monitoring, transferring, evaluating, terminating).

While New York City is the only jurisdiction that regulates the use of AI in employment decisions, there is EEOC guidance on the use of AI in the workplace and as a result of President Biden’s October 30, Executive Order we expect the Secretary of Labor to issue best practices around the use of AI in employment decisions soon.

New York City

New York City Local Law 144 regulates the use of automated employment decision tools. Automated employment decisions tools are “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for making employment decisions that impact natural persons.”

Under Local Law 144 employers or employment agencies that use an automated employment decision tool to screen a candidate or employee for an employment decision must: Continue reading →

Fifth Circuit Articulates New Employee-Friendly Test for Title VII Claims

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Title VII plaintiffs in the Fifth Circuit are no longer required plead disparate treatment in an ultimate employment decision.

In Hamilton v. Dallas County, the en banc court overturned decades of precedent and articulated a new employee-friendly rule for Title VII disparate treatment claims—“a plaintiff plausibly alleges a disparate treatment claim under Title VII if she pleads discrimination in hiring, firing, compensation, or the ‘terms, conditions, or privileges’ of her employment.”

The Standard Articulated by the Hamilton Court

  • “To adequately plead an adverse employment action, plaintiffs need not allege discrimination with respect to an ‘ultimate employment decision.’ Instead, a plaintiff need only show that she was discriminated against, because of a protected characteristic, with respect to hiring, firing, compensation, or the ‘terms, conditions, or privileges of employment’—just as the statute says.”
  • “The days and hours that one works are quintessential ‘terms and conditions’ of one’s employment”
  • “We thus leave for another day the precise level of minimum workplace harm a plaintiff must allege on top of showing discrimination in one’s ‘terms, conditions, or privileges of employment.’”

Background

The Dallas County Sheriff’s Department (“Department”) gives its detention officers two days off each week. Prior to 2019, detention officers’ days off were determined by seniority. In 2019, the Department eliminated the seniority system and days off were determined by sex—only men were allowed to take off Saturday and Sunday. Women could not elect to have both of their days off on the weekend.

Nine female detention officers sued the Department, alleging that the sex-based scheduling policy violated Title VII’s prohibition against sex discrimination. The trial court granted the County’s motion to dismiss, reasoning that the scheduling policy was not an “ultimate employment decision.” Under Fifth Circuit precedent, alleged conduct violated Title VII if it was an “ultimate employment decision” such as hiring, granting leave, discharging, promoting, and compensating. The Fifth Circuit panel affirmed the trial court’s dismissal, noting that this case was the “ideal vehicle” for an en banc court to align the Circuit’s precedent with the meaning of Title VII’s text. The Fifth Circuit panel explained that “[s]urely allowing men to have full weekends off, but not women, on the basis of sex rather than a neutral factor like merit or seniority, constitutes discrimination with respect to the terms or conditions of those women’s employment.”

En Banc Decision Continue reading →

Illinois’ Pay Transparency Amendment Sent to Governor for Signature

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Last week the Illinois General Assembly sent Governor Pritzker HB3129, a pay transparency amendment to the Equal Pay Act. If signed, HB3129 would require employers with 15 or more employees to include the pay scale and benefits for a position in any specific job posting.

The Act, as written and enforced now makes it unlawful for an employer in the state of Illinois with one or more employees to:

  • discriminate against employees on the basis of race or sex when determining employee wage rates;
  • seek the wage or salary history, including benefits and other compensation, of a job applicant from their current or former employer; and
  • retaliate against an employee who exercises their rights under the Act.

Employee Count

The amendment does not specify whether all 15 employees must work in the state of Illinois or whether the employer must have 15 or more employees corporate wide for the amendment to apply.

The amendment does however provide that the posting requirements apply to positions that will be physically performed, at least in part, in the state of Illinois. If the job will be performed outside the state of Illinois, but the employee will report to a supervisor, office, or other work site in the state of Illinois the amendment similarly applies.

Disclosure Requirements

The “pay scale and benefit” information that must be included in the specific job posting includes the wage or salary, or the wage or salary range. Additionally, the posting must include a general description of the benefits and other compensation, including, but not limited to, bonuses, stock options, or other incentives the employer reasonably expects in good faith to offer for the position. Continue reading →

Reasonable Accommodations under the Pregnant Workers Fairness Act

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The Pregnant Workers Fairness Act (“PWFA”) was signed by President Biden on December 29, 2022, and takes effect on June 27, 2023. The PWFA requires covered employers to provide a reasonable accommodation to the known limitations of a qualified employee related to pregnancy, childbirth, or related medical conditions unless the accommodation would pose an undue hardship on the operation of the business.

Below is a summary of the PWFA.

Who is a covered employer?

A covered employer is an employer with at least 15 employees. Employers may look to EEOC regulations related to Title VII and how courts interpret employers under Title VII for purposes of determining coverage as the PWFA explicitly references the Title VII definition of employer.

What does the PWFA require?

Under Title VII employers cannot discriminate against an employee based on pregnancy, childbirth, or related medical conditions. Likewise, employers covered by Title VII must treat an employee affected by pregnancy, childbirth, or related medical conditions the same as other workers with similar abilities or an inability to work.

Continue reading →

The EEOC’s Request for Information and Comment on its Draft Strategic Enforcement Plan

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While the Supreme Court is weighing the legality of universities’ race-conscious admissions processes, the Equal Employment Opportunity Commission (“EEOC”) views acts like the tragic killing of Black and brown people and high-profile incidents of bias and violence based on protected categories, like race, outside the workplace as a “painful reminder of systemic racism.” Within the workplace, the disproportionate economic impact of the COVID-19 pandemic on people of color and other vulnerable workers magnifies continued inequalities. It is against this backdrop that on January 10, 2023, the Equal Employment Opportunity Commission (“EEOC”) published a request for comment in the Federal Register on the EEOC’s Strategic Enforcement Plan for 2023—2027.

The EEOC’s Strategic Enforcement Plan:

The EEOC adopted its first Strategic Enforcement Plan (“SEP”) for FY 2013—2016. The enforcement subject matter priorities, addressed in greater detail below, for SEP for 2023—2027 are meant to ensure that the agency’s resources have strategic impact to prevent and remedy discrimination and advance equal opportunity employment.

  1. Eliminating Barriers in Recruitment and Hiring

The request for comments, notes there is a lack of diversity in certain industries such as construction and high tech. To achieve the EEOC’s purpose of advancing equal employment opportunities, the EEOC will focus on recruitment and hiring practices including: Continue reading →

What Employers Need To Know About the Latest Public Health Crisis – The Monkeypox Virus

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By Eric J. Conn and Ashley D. Mitchell

After the last couple of years living with COVID-19, we were desperately hoping that we would not have to be talking, thinking or writing about the Monkeypox Virus (“MPV”) as a workplace safety and health issue.  And while Monkeypox does NOT appear to be a COVID-19 redux, we have been getting enough questions from our clients that it now seems unavoidable that we have to dig into this.  Alas, here is our first take on Monkeypox – what is it, what are the symptoms and modes of transmission, how is it similar to and different from COVID-19, and what should employers be thinking about and doing in connection with this latest plague.

The Monkeypox Virus (MPV):

Monkeypox is a zoonotic diseases, which means it is caused by a virus that is passed between animals & people.  MPV was first detected in 1958 in a colony of research monkeys in Central and West Africa, and the first human case of Monkeypox was recorded in 1970.  The virus that causes Monkeypox is in the same family as the virus that causes smallpox, and they involve similar, but less severe symptoms in the case of MPV.

The current Monkeypox outbreak is unique in that prior to 2022, Continue reading →

What Does the EEOC’s Updated COVID-19 Testing Guidance Mean for Employers

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By Kara M. Maciel and Ashley D. Mitchell

As COVID-19 infections continue to climb, the EEOC rolled back its guidance that COVID-19 viral screening tests conducted by employers is always permissive under the Americans with Disabilities Act (“ADA”). The updated guidance requires employers to weigh a host of factors and determine whether COVID-19 viral screening is “job-related and consistent with business necessity,” the traditional standard for determining compliance with the ADA.

The Factors Employers Should Consider:

Under the EEOC’s updated FAQs, an employer may, as a mandatory screening measure, administer a COVID-19 viral test, if the employer can show it is “job-related and consistent with business necessity.” In making this determination, employers should assess these factors:

  • The level of community transmission
  • The vaccination status of employees
  • The accuracy and speed of processing different types of COVID-19 viral tests
  • The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations
  • The ease of transmissibility of the current variant(s)
  • The possible severity of illness from the current variant
  • What types of contact employees may have with others in the workplace or elsewhere that they are required to work
  • The potential effect on operations of an employee enters the workplace with COVID-19

It is worth noting, that employers still cannot require antibody testing before permitting employees to re-enter the workplace.

The State of the Pandemic:

Continue reading →

Natural Hairstyles in the Workplace: The CROWN Act

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“R-E-S-P-E-C-T. Find out what it means to me.” More than half a century after Aretha Franklin first sang those lyrics, state legislatures, local municipalities, and Congress are passing the Creating a Respectful and Open Workplace for Natural Hair legislation (“CROWN Act”). Before the flurry of legislation aimed at protecting natural hair, some appellate courts already applied the protections of Title VII liberally. In Jenkins v. Blue Cross Mut. Hosp. Ins., the 7th Circuit held a plaintiff’s EEOC charge sufficiently alleged race discrimination where plaintiff’s EEOC charge stated plaintiff’s boss denied plaintiff a promotion because plaintiff “could never represent [defendant] with [an] Afro.” 538 F.2d 164, 168 (7th Cir. 1976). Other courts, however, took a narrower approach. In EEOC v. Catastrophe Mgmt. Solutions, the 11th Circuit reasoned “Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practice[,]” thereby upholding a race neutral grooming policy that prohibited dreadlocks. 852 F.3d 1018, 1028-34 (11th Cir. 2016). Indeed, as recently as 2018, the U.S. Armed Forces maintained grooming policies that prohibited natural or protective hairstyles commonly worn by Black servicemembers because the hairstyles were “unkempt.”

The CROWN Act

More than a dozen state legislatures already passed a variation of the CROWN Act Continue reading →

Chicago’s New Year Vaccine Requirements

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As COVID-19 cases continue to rise throughout the state of Illinois, operators of indoor dining establishments, gyms, and entertainment venues where food and drinks are being served in the City of Chicago face a series of new requirements that necessitate quick action. Beginning January 3, 2022, Public Health Order 2021-2 will require all individuals over the age of 5, show proof of full vaccination to dine indoors, workout, and patronize entertainment venues. For purposes of the Public Health Order, fully vaccinated is the more restrictive of either the Centers for Disease Control and Prevention (CDC) guidance or Chicago Department of Public Health (CDPH) posted guidelines. For the time being, both the CDC and CDPH guidelines are aligned, defining fully vaccinated as two weeks after receiving the second dose in a two dose vaccination series and one week after receiving a single dose in a single dose vaccination series.  It remains to be seen if, or when, the recommended-but-not-required boosters will be added to that definition. 

Employers, of course, must quickly figure out how to implement measures to comply with this Order—both with respect to customers/guests as well as with employees given that the Order does not have a minimum employee threshold like the Fed OSHA ETS.  This means that even small, independently owned restaurants and bars will be expected to comply even if they were not covered by the ETS which kicked in only at 100 employees. 

Who is covered? 

Continue reading →

Employment Law Implications of the OSHA ETS: Medical and Religious Accommodation Requests

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Published in the Federal Register on November 5, 2021, the Federal OSHA Emergency Temporary Standard on Vaccination and Testing (“ETS”) first major compliance deadline was December 6, 2021. However, as a result of a stay entered by the 5th Circuit, and the 6th Circuit’s refusal to grant the Biden Administration’s petition to move up the briefing schedule, OSHA cannot begin enforcing, and has ceased all action, including answering employer questions about, the standard. (For continued updates on the status of the ETS review our Employer Defense Report and OSHA Defense Report.) Accommodation,Sign,With,Sky,BackgroundAs outlined in greater detail in a previous blog, the ETS generally requires employers with 100 or more employees to: develop employer policies on vaccination; provide paid time off for vaccination and to recover from vaccination; require employees to provide proof of full vaccination or submit to weekly testing; require unvaccinated workers to wear a face covering; remove COVID-19 positive cases from the workplace; and inform employees about the requirements of the ETS, COVID-19 vaccine efficacy and safety, prohibited retaliation, and the criminal penalties associated with knowingly supplying false statements or documentation. Given the robust requirements of the ETS, employers would be well advised to put in place mechanisms for compliance with the ETS in the event the stay is lifted, particularly if there is no delay in compliance deadlines. One important consideration is how to handle ETS-related medical and religious accommodation requests.

1. Background

Title I of the Americans with Disabilities Act of 1990 (ADA) requires employers to provide a reasonable accommodation, so long as it does not impose an “undue hardship,” to qualified employees who have a disability. A person with a disability has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such impairment. A qualified employee or applicant with a disability is a person who, with or without a reasonable accommodation, can perform the essential functions of the job. If an employee or applicant with a disability requests a reasonable accommodation, employers must engage in an interactive process. In doing so, EEO guidance permits employers to consider whether complications created by the COVID-19 pandemic create a “significant difficulty” in acquiring or providing certain accommodations. For example, it may be more difficult for an employer to provide an employee requesting an accommodation with a temporary re-assignment.

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination on the basis of religion. Employers are required to provide a reasonable accommodation to employees with a “sincerely held” religious belief unless doing so would cause more than a minimal burden. In Draper v. U.S. Pipe & Foundry Co., the court held Continue reading →