SAN DIEGO — Technological innovations and changing work arrangements brought on by the COVID-19 pandemic are among some of the emerging issues that can make employers vulnerable to discrimination lawsuits, a top employment practices defense attorney said Thursday.
Barry A. Hartstein, co-chair of the Equal Employment Opportunity & Diversity Practice for the Littler Mendelson law firm in Chicago, discussed practices that may attract the attention of the federal Equal Employment Opportunity Commission during the Professional Liability Underwriting Society’s annual conference.
He said some of the artificial intelligence tools that employers use to winnow the field of job applicants may unwittingly discriminate against disabled applicants by failing to take into account the requirement imposed by the Americans with Disabilities Act that employers make reasonable accommodations for persons with disabilities.
“AI does not always work in tandem with the reasonable accommodation requirement,” he said. “There are a lot of vendors out there who don’t necessarily know what they are doing from an EEO perspective.”
Similarly, employers that demand workers who have been working remotely return to company offices may run afoul of the ADA if some of those workers resist because of mental health disorders, he said. For example, if a worker has been successfully working from home for the past two years and wants to continue doing so because they are coping with anxiety or depression, it may be difficult to support a decision to terminate that worker solely because they want to continue to telecommute.
“We are going to see more and more of these requests for reasonable accommodation under the ADA,” he said.
Hartstein said during the first two years of the Biden administration there hasn’t been any increase in employment discrimination actions. The EEOC received 61,331 discrimination charges in fiscal year 2021, which ended on Sept. 30 last year. That compared to 67,448 charges received in 2020 and is down significantly from the 70,000 to 90,000 discrimination complaints the agency has typically received each year over the past two decades, agency statistics show.
But that doesn’t mean the agency is going easy. The fiscal year 2022 budget increased the budget for the agency by 10% and authorized the addition of 450 new positions for the agency, primary field investigators. He said those new hires spell could trouble for employers.
“They want to prove how smart they are and what they do is they make unreasonable demands and start unreasonable investigations,” he said.
Hartstein said employers should take notice of EEOC Chair Charlotte Burrow’s recent initiative to address pay equity and systemic discrimination. He said the EEOC can expand an investigation into a single employee complaint into a “systemic” investigation any time it wants to, and the result can consume a company’s resources.
He advised employers to take a close look at any fixed-leave policies that require all employees to abide by the same rules on paid time off regardless of their personal situation. A “time-to-heal” rule that results in termination of a worker doesn’t recover from an illness or injury by a certain time can also result in a discrimination action.
If employers do find themselves facing off against the EEOC, Hartstein offers this advice: “I cannot overstate the value of mediation when it is offered by the agency,” he said.
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