Written Testimony of Johnny C. Taylor, Jr., SHRM-SCP, President and Chief Executive Officer, the Society for Human Resource Management

Wednesday, April 28, 2021

Introduction

Chair Burrows and distinguished Commissioners Samuels, Dhillon, Sonderling, and Lucas, I am Johnny C. Taylor, Jr., President and Chief Executive Officer of SHRM, the Society for Human Resource Management. I appear before you today on behalf of the world’s largest HR professional society, representing 300,000+ HR professionals and business executive members, in 165 countries, who impact the lives of more than 115 million workers and their families—about 1 in 3 Americans. For over 70 years, SHRM has been the leading provider of resources serving the needs of HR professionals and advancing the practice of human resource management.

Thank you for this opportunity to testify before the U.S. Equal Employment Opportunity Commission (EEOC) on the civil rights implications the COVID-19 pandemic has imposed on workers and their workplaces. SHRM appreciates the Commission’s focus on the disproportionate negative impact the pandemic has had on the work lives of minorities, women, older workers, and workers with disabilities.

My testimony describes the following aspects of this important issue: (1) the impact of the COVID-19 pandemic on all workers, including minorities, women, older workers, and workers with disabilities (including difficulties facing employers as they navigate equal employment opportunity issues related to the pandemic’s impact on workplaces and workers and the critical role of HR professionals); (2) additional opportunities for the EEOC to address urgent, unresolved issues regarding vaccinations given the critical role they play in eliminating current, long-lasting effects of COVID-19 on the safety and health of all workers in the workplace; (3) opportunities for the EEOC to provide updated practical guidance on best practices for employers to ensure respectful workplaces in light of increased reports of harassment and violence against minorities and underrepresented workers as a result of the COVID-19 pandemic; and (4) opportunities for the EEOC to support and enhance employer practices to relieve certain negative impacts of the pandemic on worker-caregiver responsibilities, which are disproportionately carried out by women and women of color.

The Pandemic’s Impact on All Workers, Including Its Disproportionate Impact on Minorities, Women, Older Workers, and Workers with Disabilities, and the Critical Role of HR Professionals

The pandemic’s impact on workers and workplaces cannot be overstated as it deeply affects all workers in all areas of their work and non-work lives. The same is true for the pandemic’s disproportionate impact on women, minorities, older workers, and individuals with disabilities. Current statistics on the impact of the pandemic on the workforce show a clear picture of disproportionate job losses for minorities and women.

According to a SHRM survey and other research[1], workers who fall into the categories of “front-line workers,” “essential workers,” or “front-line essential workers” are predominantly women—specifically, women of color.

For example, women of color represent:

• 93% of childcare workers
• 66% of grocery store cashiers/salespeople
• 70% of waiters and waitresses
• 77% of clothing/shoe store cashiers/salespeople[2]

Additionally, women of color make up more than 8 in 10 of those working as home health aides, personal care aides, and nursing assistants—a population whose job duties put them at great risk for contracting COVID-19 and also transmitting COVID-19 to loved ones at home.[3]

Alarmingly, in January 2021, the total number of women who had left the labor force since the start of the pandemic reached over 2.3 million. This “she-cession” has left women’s labor force participation rate—the percentage of adult women who are either working or looking for work—at 57 percent, the lowest amount since 1988.

More than 1 in 5 employees in the United States personally know a woman who has voluntarily left the workforce during the pandemic due to caregiving responsibilities.[4] Forty-four percent of current employees agree that it is more challenging for women with caregiving responsibilities to be successful in the workplace due to the pandemic. Nearly 20 percent of working Americans with caregiving responsibilities feel like their professional development has been stifled during the pandemic because of their caregiving responsibilities.

In addition to serving on the front lines throughout the pandemic, facing unemployment, and providing additional caregiving to children and the elderly, women and women of color have had to confront mental health issues caused by the pandemic.

In a survey conducted by SHRM in February 2021, one-third of working women reported often feeling tired or having little energy. Nearly half of working women reported feeling emotionally drained from their work. Forty-five percent of working women reported feeling burned out from work. Thirty-one percent of female workers surveyed in the United States responded that they personally know a woman who voluntarily left the workplace during the COVID-19 pandemic because of caregiving responsibilities. Additionally, 27 percent of female workers with caregiving responsibilities reported that their professional development was negatively affected by the pandemic, whereas 10 percent of men reported the same.[5] A quarter of workers of color responded they were laid off or furloughed from a job due to the pandemic.[6] Over one-third of workers of color reported they have sometimes felt down, depressed, or hopeless over the past few weeks.[7]

Older workers and workers with disabilities have also been among the hardest hit by job losses as a result of the pandemic. According to WorkingNation,[8] over 1 million older workers have left the workforce during the pandemic. Many of these workers accessed their Social Security benefits earlier than planned and, as a result, received up to an 18 percent reduction in overall benefits. Of those who have remained in the workforce, 79 percent of Baby Boomers found social interaction to be more difficult when working remotely.[9] Almost a third of Baby Boomers and Traditionalists said they were more satisfied with their jobs since they started working remotely during the COVID-19 pandemic.[10]

As of July 2020, 13 percent of older workers had lost their jobs during the pandemic; among older workers of Asian and Hispanic or Latino descent, the percentage was even higher—19 percent for older workers in these two ethnic groups.[11] In addition, older workers are more likely to be unemployed for longer periods of time, and when they become employed, they are more likely to earn less than in their previous employment.

Similarly, 38 percent of people with disabilities reported being laid off, furloughed, or forced to shut down their business due to the pandemic, and two-thirds expect to experience acute economic insecurity over the next year.[12]

Prior to the pandemic, the labor market outcomes for individuals with disabilities were some of the best on record since 2008.[13] In February 2020, the unemployment rate for individuals with disabilities was at 7.8 percent; however, by the end of 2020, that number had increased to 12.6 percent.[14] Many individuals with disabilities work in non-essential businesses that were closed or had limited operations for the first few weeks or months of the pandemic. However, there have been positive employment outcomes for individuals with disabilities due to an increase in telework opportunities.[15]

SHRM Data Describes the Critical Role of HR Professionals During the Pandemic

HR professionals have had and will continue to have a critical leadership role in their organizations, especially as employers continue to navigate the workplace challenges presented by the pandemic. It is beyond question that the pandemic has presented some of the most critical, intensive, and urgent workplace issues HR professionals have ever experienced. HR professionals are truly the “workplace first responders” supporting both employers and employees as they navigate these unprecedented and uncertain times.

Last year, SHRM encouraged its membership to share stories on resiliency. Below is a sampling of workplace issues HR professionals have addressed during the pandemic:

• Creating and implementing new work-from-home policies to address the pandemic’s effect of transforming the bulk of the workforce overnight into full-time remote workers.
• Revising sick-leave and leave-of-absence policies to comply with myriad COVID-19-related local, state, and federal laws while supporting employees through extraordinary shifts in balancing work-life needs.
• Recruiting and welcoming new staff during the pandemic, including those working virtually, which created significant obstacles to successful onboarding experiences for such employees.
• Responding to employee concerns about health and safety in the workplace.
• Addressing concerns of both managers and employees about productivity and supervision under a new normal.
• Enhancing communications to employees, many of whom are remote, to highlight the availability of support services, including employee assistance program (EAP) resources, as well as creating, revising, and/or enhancing workplace flexibility practices, processes, and technological and other resources.

HR professionals have faced myriad new challenges with respect to all aspects of an employee’s relationship with their work, co-workers, workplace, and employer. Throughout the pandemic, SHRM members have taken material steps toward ensuring the health, safety, and welfare of work, workers, and the workplace.

As part of its member services, SHRM provides HR professionals with access to HR Knowledge Advisors in its HR Knowledge Center. These advisors offer guidance, information, and resources to assist SHRM members with immediate HR-related inquiries. In preparation for my testimony, SHRM reviewed over 100 cases from its HR Knowledge Center to determine the main employment discrimination issues SHRM members have sought guidance on during the pandemic. HR professionals’ top issues fall into the following four categories related to the pandemic and equal employment opportunity concerns:

1. Communicating with and educating employees about respectful workplace practices, especially as they relate to potential conflicts that arise in the workplace, including incidents of workplace threats, harassment, and violence on the basis of someone’s race or national origin.
2. Balancing equal employment opportunity obligations under Title VII, the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA) confidentiality obligations, Occupational Safety and Health Act and related state law obligations to provide a safe workplace for employees while also respecting an employee’s privacy rights in the context of (1) confirmed positive cases of COVID-19 in the workplace and in work interactions, and (2) information requests related to COVID-19 symptoms, testing, and vaccination status of an employer’s employees, customers, clients, and business partners.
3. Reviewing existing flexible- and remote-work policies, practices, and resources in light of the widespread need in certain industries and occupations to provide services from remote locations. At the same time, many employers needed to address essential and other workers’ return to the workplace under vastly changed circumstances due to their individual family situations as well as significant alterations to the workplace.
4. Developing and communicating employment practices with respect to employees’ ability to return to the workplace when a medical issue impacts either them individually or a member of their household.

On June 5, 2020, SHRM provided the EEOC with a list of three topics—contact tracing, employee inquiries, and accommodations under the ADA—that relate specifically to questions that remained unanswered by available EEOC and other federal agency guidance. These questions have been top of mind for HR professionals navigating return-to-workplace issues throughout the pandemic. SHRM provided the EEOC with numerous, specific questions and concerns expressed by SHRM members in their day-to-day dealings with employees returning to work and related workplace scenarios. On June 11, September 8, and December 16, 2020, the EEOC updated its Technical Assistance Q&As to address many of the concerns raised by SHRM.[16] SHRM appreciated the 2020 technical guidance provided on these important topics.

Looking forward, HR professionals have cited the following significant challenges for their organizations in 2021:

1. Maintaining employee morale and engagement
2. Navigating the pandemic’s continued impact on their workforce and safety practices
3. Finding and recruiting talent with the skills they need
4. Retaining top talent
5. Managing a partially or fully remote workforce
6. Supporting the needs of employees with caregiving responsibilities
7. Supporting employees with mental health concerns[17]

As discussed below, SHRM believes guidance and additional resources on vaccines, caregiver responsibilities, and respectful workplaces, updated to address specific concerns raised as a result of harassment toward minority and underrepresented workers related to the pandemic, will assist workplaces in eliminating some of the negative impacts of the pandemic on women, minorities, older workers, and workers with disabilities.

SHRM Urges the Commission to Provide Guidance on Urgent, Unresolved Issues Regarding Vaccinations

Given the critical role vaccinations play in eliminating current, long-lasting effects of COVID-19 on the safety and health of all workers in the workplace (and their families), and especially older workers and workers with certain disabilities (and underlying conditions), SHRM urges the Commission to provide workers and employers with guidance on unresolved issues regarding vaccinations.

With regard to returning to physical worksites, HR professionals are most optimistic about the impact of the COVID-19 vaccine rollout in creating a safer work environment and enabling the return to in-office work in 2021.[18] Sixty-three percent of employed Americans will probably or definitely get the vaccine once it becomes available to them. On the other hand, 37 percent will probably or definitely not get the vaccine.[19] Nearly 40 percent of employed Americans believe the COVID-19 vaccine should be mandatory for everyone who is able to receive it.[20]

Over half of employed Americans would support their employer requiring that all employees get the vaccine as a condition of employment and do not want to return to work alongside unvaccinated colleagues.[21] A SHRM survey of 578 employed Americans conducted at the end of March 2021 found that 52 percent of respondents would support their employer requiring all employees to be vaccinated as a condition of employment.[22] SHRM data also shows that there will inevitably be workforces that are divided along lines of the vaccinated and the unvaccinated.

HR professionals are struggling to understand and advise their business leaders about the extent to which an employer can consider an employee’s vaccination status when returning to work and what distinctions can be made in the workplace based on vaccination status. The Centers for Disease Control and Prevention has already indicated that vaccinated individuals do not need to quarantine after a workplace exposure, setting the first dividing line in the treatment of vaccinated and unvaccinated employees in the workplace.

Employers are in urgent need of guidance as they devise their return-to-workplace strategies. The EEOC can help facilitate a smooth and safe transition back to physical worksites by issuing clear and timely guidance that will assist employers and HR professionals in navigating a variety of issues. This guidance must give due consideration to the pandemic’s impact on businesses at a time when many organizations are struggling to survive, as well as maintain employment levels and critical benefit offerings. SHRM urges the EEOC to turn, as soon as possible, to issuing guidance or technical assistance that addresses the following:

• Does it run afoul of the laws that the Commission enforces for employers to require proof of vaccination from employees? Relatedly, can employers prioritize the return to in-person work for vaccinated individuals over unvaccinated individuals generally? If not, what limitations exist in doing so?
• In accommodating those who have religious- or disability-based objections to being vaccinated, can employers have unvaccinated employees work in separate areas or in teams that would allow those teams to continue masking and social distancing when states roll back such safety measures generally, or with respect to vaccinated employees?
• How should employers address requests from employees who want to remain remote workers when their employers want them back in the office? Post-pandemic, what are the rights of individuals, if any, under equal employment opportunity laws if the individuals do not have immune disorders or underlying conditions that make them more vulnerable to contracting COVID-19 or to severe consequences to their health if they contract COVID-19, but instead have a generalized fear and anxiety about coming back to work, even if their employer is in full compliance with applicable workplace safety rules? What if their concern is based on the medical issue of a member of their household and not themselves?
• When considering accommodation requests that include a request to work remotely based on medical or caregiving needs, how should employers weigh the “precedent” that has been set by allowing employees who had previously been told they must work in the office to work remotely for the past year? Some employers may have waived the requirement for employees to perform certain essential duties at their workplace during this time.
• What are the guardrails on vaccine incentives given the withdrawal of the EEOC’s proposed wellness rules? Currently, the only parameter is that the incentive not be so large as to jeopardize the voluntary nature of the participatory wellness program through which the incentive is offered. Do the ADA wellness rules apply if employees get the vaccine through a third party not under contract with the employer? What types of contracts qualify (i.e., solely a contract to administer the vaccine)?

With respect to the last area of uncertainty described above, SHRM has previously requested the EEOC provide guidance regarding employer-provided incentives for COVID-19 vaccination. On February 1, 2021, SHRM (and other organizations) provided the EEOC with a written request to “quickly issue guidance clarifying the extent to which employers may offer employees incentives to vaccinate without running afoul of the Americans with Disabilities Act and other laws enforced by the EEOC.” On April 15, 2021, the EEOC responded that it “expects to update its technical assistance about COVID-19 to address these issues, among others, and that work is ongoing.” Given the urgent need for clarity on the legality of COVID-19 vaccine incentive programs, as well as the wide availability of vaccines and the continuing threats COVID-19 poses to the nation’s workforce, SHRM requests the Commission prioritize issuance of guidance that defines what qualifies as a permissible incentive.

SHRM Encourages the Commission to Provide Updated Guidance to Employers on Best Practices to Ensure Respectful Workplaces in Light of the Pandemic’s Impact on a Rise in Instances of Workplace Violence and Harassment

As SHRM’s statement during the EEOC’s Industry Leaders Roundtable Discussion on Harassment Prevention in March 2019 highlighted, culture—not compliance—drives workplace conduct.[23] As a result of the COVID-19 pandemic, violence and reports of bias-motivated harassment against minorities and underrepresented groups have increased. Early in the pandemic, on March 11, 2020, SHRM Online reported on incidents of workplace harassment against Asian Americans and Pacific Islanders (AAPI). SHRM provided supporting statistics and specific recommendations regarding what employers can do to prepare staff on how to respond to clients and customers who may refuse service from employees of AAPI descent, how they can develop protocols against discrimination and harassment in COVID-19 response teams, and how they should provide bystander intervention training, among other specific recommendations. See “Coronavirus and Racism: Take Precautions to Fight Discrimination” by Kathy Gurchiek (March 11, 2020) (last visited April 21, 2021).

SHRM is committed to continuing the conversation about and providing education on combating workplace violence, harassment, and xenophobia with its members and the public. SHRM recognizes the importance of programming and specific practical guidance on the prevention of workplace harassment during the pandemic. For example, last month SHRM provided specific guidance to HR professionals dealing with xenophobia at work and also provided links to additional available SHRM resources. See “Asian Americans Face Violence, Workplace Discrimination” by Beth Mirza (March 22, 2021) (last visited April 21, 2021).

SHRM appreciates the Commission’s Resolution dated March 19, 2021, condemning the recent violence, harassment, and acts of bias against minorities and underrepresented persons, as well as the Commission’s reaffirmation of its commitment to combat racism, xenophobia, and harassment against minorities and underrepresented workers to ensure equal opportunity, inclusion, and dignity for all workers.

To further this goal, SHRM encourages the EEOC to provide a timely update to its widely used and practical guidance document titled “Promising Practices for Preventing Harassment,” issued on November 21, 2017, to include best practices to assist employers in preventing and addressing harassment against minorities and underrepresented individuals as a result of the COVID-19 pandemic. See “Promising Practices for Preventing Harassment” (November 21, 2017) (last visited April 21, 2021) (“Promising Practices Guidance”). The Promising Practices Guidance provides important information utilized in workplaces throughout the United States. SHRM encourages the EEOC to update the Promising Practices Guidance to include practices to ensure a respectful workplace related to the COVID-19 pandemic and, in particular, related to the recent increase in harassing behaviors toward minorities and underrepresented workers due to the pandemic. As noted above, SHRM has resources available to assist the Commission and would be happy to work with it to do so in a timely manner.

SHRM Encourages the Commission to Provide Guidance and Incentives to Employers to Embrace and Support Caregivers

Women, and women of color in particular, have been among the hardest hit by the COVID-19 pandemic. Women have left the labor market in higher numbers than other groups. Women also disproportionately bear the responsibilities of caregiving for their families (including young children and parents) at a time when existing community structures that have traditionally provided certain supportive caregiving and family services, such as schools and religious institutions, were no longer able to do so. Black and Hispanic women have been hit hardest by job losses, with workforce exits in general being driven by mothers and working minorities.[24]

The key to bringing women back to the workplace is flexibility. Flexibility is not limited to working from home full time. Often, the accommodations women need are not accommodations that cost money; flexibility is not a commodity. Rather, flexibility requires empathy. The EEOC has already published both “Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities” and a list of “Employer Best Practices for Workers with Caregiving Responsibilities.” As the agency notes in the Best Practices document, “employers adopting flexible workplace policies that help employees achieve a satisfactory work-life balance may not only experience decreased complaints of unlawful discrimination, but may also benefit their workers, their customer base, and their bottom line.”[25]

SHRM is aligned with the Commission in championing this flexible approach to the workplace and agrees with the recommendations included in the EEOC’s Best Practices document. SHRM encourages the Commission to consider stating in its Enforcement Guidance, Compliance Manual, or elsewhere that if employers implement the best practices recommended by the Commission and train their managers on these concepts, these practices will create a rebuttable presumption of non-discrimination in the event of a claim of discrimination by a worker with caregiving responsibilities. This will provide employers with an additional concrete and immediate incentive to implement these best practices for a flexible-work environment.

As employees begin to return to physical worksites in the aftermath of the vaccine rollout, we anticipate there will be formal and informal complaints regarding the treatment of workers with caregiving responsibilities. Now is the time, given all we have learned in the past year—especially those businesses that had strict policies against remote work—for employers to begin to implement flexible-work arrangements that demonstrate empathy for the severe constraints placed on female workers, and primarily female workers of color.

Lastly, in an article I co-authored for Quartz at Work, I made the point that, even before the COVID-19 pandemic, our society, and our workplaces in particular, had an empathy deficit.[26] Empathy doesn’t demand that we all agree; empathy enables us to perceive and consider someone else’s point of view. This is important as almost half of HR professionals felt that this year they could make an impact in the workplace by building a more empathetic culture (e.g., increasing empathy within organizations). And 22 percent of HR professionals felt they could make an impact by reducing racial injustice in the workplace.[27]

It is important for work, workers, and the workplace to exercise the muscle of empathy to assist in mitigating the pandemic’s lasting implications in the workplace. Empathy will be critical to economic and business recovery because empathetic workplace cultures retain the best people and enjoy high productivity.[28]

Conclusion

SHRM pledges to work with the Commission as it addresses the COVID-19-related issues that impact work, workers, and the workplace, including its disproportionate impact on people of color, women, older workers, individuals with disabilities, and other vulnerable workers. Thank you for the opportunity to appear before the Commission. I look forward to your questions.