Chair Burrows: Good morning and thank you everyone for joining us for our very first remote video cast hearing of the U.S. Equal Employment Opportunity Commission. I am so pleased to have all of you here and to have our Commissioners here for the first time in a full Commission in this new year. So welcome to everyone and I'd like to extend a very warm welcome to all of our distinguished panelist. Many thanks to each of you for your thoughtful written testimony and for your willingness to join us here today to share your expertise. My thanks as well to the many EEOC staff who worked tirelessly over the past several weeks and months to prepare for today's hearing. I'd especially like to thank our Executive Secretariat and the Office of the Chief Financial Officer, our facility staff who manage the physical and logistical aspects of the hearing and everyone else, particularly the debt of gratitude I owe to the Office of Information Technology team should be mentioned.

They have worked hard to make the idea of this virtual hearing a reality. Thanks finally, to the Office of Communications and Legislative Affairs, the Office of Legal Counsel, my own staff and the many others at the agency who helped make today's hearing possible. I also thank the Vice Chair, my fellow commissioners, and their staff for their support and contributions.

Finally, many thanks to our field staff across the country and members of the public who are joining us virtually for this important conversation. The purpose of today's hearing is to examine the workplace civil rights implications of the COVID-19 pandemic. I very much look forward to hearing from all of our witnesses and from each of the commissioners today about this important topic. The past 12 months have been frankly, incredibly difficult for the American people. It's been clear for some time that the pandemic is not only a public health and economic crisis, but truly 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.

The pandemic’s health and economic fallout has disproportionately impacted people of color, women, older workers, immigrant and migrant workers, individuals with disabilities, Native Americans, many transgender persons and other vulnerable workers. And that impact has serious implications in the workplace. At the start of the pandemic layoffs and furloughs were largely concentrated in industries like food service, childcare and hospitality, in which women, persons of color, older workers, and workers with disabilities are overrepresented in the workforce. Many employees in their peak earning years, particularly women, have had to leave the workplace to care for children, parents, or family members with disabilities. And unfortunately experience teaches that the longer someone is out of the workforce, the harder it is for them to return. Those who have kept their jobs are also severely impacted, women and workers of color are overrepresented in the front lines as well.

Those jobs like nurses, caregivers, and other essential workers, these are critical to our nation's pandemic response and recovery, but also more likely to have inflexible schedules and unpaid and restrictive leave policies. As a result, many essential workers are less likely to be able to stay at home or seek medical care when they get ill, resulting in more workplace exposures, delayed treatments, and more severe COVID-19 outcomes. The more recent violence and harassment against Asian Americans and Pacific Islanders or AAPI individuals as well as Native Hawaiians in the workplace, is yet another way in which the ongoing pandemic has become a civil rights crisis. This nation faces increasing violence and discrimination against AAPI persons, friends, business owners, neighbors, students, community leaders, and colleagues, while it's been mostly fed by the false and dangerous rhetoric that AAPI persons are somehow responsible for this pandemic, this shameful bigotry and violence against AAPI persons across the nation truly has far deeper roots, and these acts of violence and hatred must be rejected in the strongest possible terms.

The Commission did just that by recently passing a unanimous bipartisan resolution, condemning violence, harassment and acts of bias against AAPI persons. These concerns and other challenges facing workers, employers, and the Commission are highlighted in excellent written statements from our witnesses and I very much look forward to their testimony. Today's hearing will illuminate these urgent civil rights issues, which deserve to be front and center in the ongoing national dialogue about the pandemic. As we continue to make progress in battling this pandemic, with vaccines becoming widely available and new federal legislation to bolster the economy, the EEOC must do its part to ensure that workplace discrimination does not add to the challenges facing working people in this pandemic. We must also support employers in navigating the new landscape that the pandemic has created for American workplaces.

As employers seek to juggle telework, keep employees safe and stay up to date with the latest public health announcements, to name just a few of the challenges, we should help them as much as possible to understand specific equal employment opportunity issues arising due to COVID-19. I am pleased this bipartisan commission is examining these issues together today, and it is my hope that this hearing will assist our continuing efforts to better serve the American people. Throughout the pandemic we have sought to assist employees and employers, despite the need to limit in-person contacts. We've been able to continue education and outreach, our investigations, mediations, and yes even trials and have provided online technical assistance to the public in the form of a “What You Should Know” document since the onset of this pandemic.

That document addresses the application of employment laws to a host of practical questions, and it currently includes more than 70 questions and answers. We are in the process of finalizing new updates to the EEOC technical assistance, and I expect this hearing will help inform that process as well. Updating our technical assistance will be an ongoing process, as circumstances change and our knowledge about the Corona virus evolves.

Before we continue, I will briefly explain the procedures for today's hearing. The hearing is being recorded and a verbatim transcript will be made of today's proceedings. The recording and the transcript, as well as the biographies and written testimony of our witnesses will be posted on the EEOC website after the hearing. As the presiding officer, I am responsible for regulating the course of this hearing.

The hearing will consist of two panels of witnesses. Following opening statements by each Commissioner, I will introduce the witnesses on our first panel, each of whom will have five minutes for their remarks. After the witnesses complete their remarks, we will have two rounds of questions from members of the Commission, with a 10-minute break between rounds, we will then break for lunch. When we return, I will introduce the witnesses on our second panel, who again, will have five minutes each for their remarks followed by two rounds of questions from members of the Commission. While this hearing is open to the public, remarks and questions will not be taken from the audience. I would like now to invite my fellow commissioners to make opening statements beginning with Vice Chair Samuels.

Vice Chair Samuels: Thank you so much Madam Chair. Thank you for calling this meeting today on this critical issue. COVID-19 has impacted and upended all of our lives, and in many ways we will never be the same. Across the country and around the world, far too many of us have suffered the unspeakable loss of loved ones. We all know those who've been gravely ill or are still struggling to recover from the virus. In particular, our hearts go out to the people of India today, as they suffer through the worst outbreak of COVID-19 to date. The stories in the news are literally heart-wrenching and this has truly been a heartbreaking time. As you know, the pandemic is a monumental public health crisis that has claimed the lives of nearly 600,000 Americans. It is also a devastating economic crisis that has led to a record number of business closures and job losses, and has created financial insecurity and extreme hardship for millions of working people.

And as the Chair has frequently noted, it is also a civil rights crisis. As I know today's testimony will make clear communities that already struggled with the challenges of stigma and discrimination, not only contracted the virus at disproportionate rates but also suffered disproportionately for the economic fallout. The pandemic has exposed and amplified existing inequities that have made it much more difficult for essential workers and workers of all backgrounds, including women, caregivers, people of color, immigrants and migrant workers, indigenous people, older workers, people of faith, individuals with disabilities, members of the LGBTQ+ community to enjoy truly equal employment opportunities. And so we need today to listen, to take stock, and to develop a plan of action. Access to employment is key to an individual's economic security, and is key to the economic recovery of our nation generally. Not all of the structural inequities we'll hear about today can be addressed with the tools that the anti-discrimination laws provide to us, but we owe it to all workers to commit to doing our best to promote equal employment opportunity in the face of these realities.

As businesses begin to reopen therefore, we must be alert too, and address any discriminatory employment barriers that vulnerable workers face. We must provide the guidance that employers need to reopen safely and to operate productively while ensuring that they understand their obligations under the law to provide equal employment opportunity. We must undertake outreach with a particular focus on hard to reach communities, to make sure that workers understand their rights. Toward that end, I'm so grateful to all the witnesses who are joining us today. You represent the voices of millions who've been affected by the pandemic, as well as the employers who've been dealing on the front lines with the fallout. I'm eager to hear and learn from all of you. Your testimony will give us greater insight into specific challenges that various communities face and the types of practical questions that are arising in the workplace. It will help us hone in on emerging employment discrimination issues and inform our work going forward.

Your advice will help us develop clearer, more relevant guidance on COVID issues, and allow us to continue to provide technical assistance that employers and workers can use. Addressing the pandemic's impact on equal employment opportunity is, and no doubt will continue to be a complex issue. Our existing anti-discrimination laws were not drafted with the consequences of a global pandemic in mind. We must all work together with open minds to address these challenges. After all, we know that civil rights is not and should not be a partisan issue. The fact that we've assembled such a distinguished panel of witnesses from many different communities with many different perspectives, and that we are willing to listen to each other and collaborate, gives me confidence that we can engage in decision-making that is far reaching and consequential. So despite the challenges we've faced, I think this is a moment of great hope, hope that we are turning the corner on the spread of the virus, hope that we will soon be able to resume assemblance of normal activities, hope that people will regain or attain financial security.

I look forward to working closely with my colleagues so that workers can get back to work and our economy can get back on track. Finally, I want to thank all of you who are joining us virtually. EEOC is only one piece of the solution to this problem, each of us must and I know will, commit to this effort and recognize that we are all in this together. It is in that way that we will ultimately be able to crush the virus and ensure that all people are treated fairly, and equitably and able to enjoy the equal employment opportunity that our laws promise. Thank you so much.

Chair Burrows: Thank you Vice Chair, and Commissioner Dhillon.

Commissioner Dhillon: Morning, it's a pleasure to be with all of you here today and I too want to extend my thanks to our witnesses for their thoughtful submissions and their attendance here today. The COVID-19 pandemic has affected the communities that we proudly serve. There is no question that women, persons of color, and persons with disabilities, many of them workers and small businesses providing essential services, have been disproportionately affected by the pandemic. As the Commission hears from our panelists today, we should think carefully about our future policy decisions and how they will affect these individuals. As policymakers, when crafting thoughtful enforcement policies protecting victims of discrimination in the workplace, we must understand that our decisions can rebound beyond their desired effect, and actually cause harm to those we're trying to help. One need only look at the decisions to close the public schools, to see the unintended harmful effect that those school closure policies had on many types of workers, particularly working mothers of school aged children.

In fact, when the schools closed, working mothers began to leave the workforce at an alarming rate. And although the policymakers that made those school closure decisions certainly did not desire to make life more difficult for working mothers, it is a lesson in how policy choices can have harmful consequences to workers that this agency intends to serve. As the Commission looks ahead to the post pandemic world, we should also understand that COVID-19 has triggered new behaviors that are going to impact the workplace, potentially cause some workers to lose their jobs, or have their jobs restructured. For example, a recent survey of CEOs found that with the rise of remote work, 30% expected to reduce the size of their office space.

This reduction and demand for office space will impact related support positions, such as clerical workers, maintenance staff, security personnel, jobs that often are filled by entry-level workers. Another unintended consequence caused by the pandemic induced lockdown has been the increase in substance abuse since the onset of the pandemic. It appears the decisions made to curb the public health crisis presented by COVID-19, including lockdown orders, actually hindered treatment, access to treatment services for those suffering from opioid addiction. Indeed, unfortunately, although acting with the best of intentions, these lockdown orders exacerbated another crisis this nation faces, the opioid crisis.

A study in the journal of American Medical Association of drug tests nationwide reported an increase in fentanyl and methamphetamine positivity rates when comparing four months before and four months after the March 13, 2020 national emergency declaration. Fentanyl positivity rates increased almost 3%, methamphetamine rates rose almost 3%. In the Seattle area, overdose deaths in 2020 involving fentanyl increased 57% over the prior year. There was an 162% increase in the Las Vegas area, and a 61% increase in the San Francisco area.

Indeed in San Francisco in 2020 there were more drug overdoses than deaths from COVID by a factor of more than two to one. The EEOC has already taken steps to address the opioid crisis. In August of last year, the EEOC issued two important technical assistance documents to address accommodation issues under the ADA for employees who use or have been addicted to opioid medication. And a second document was issued to assist medical professionals who treat these patients so that the medical professionals would understand their patients ADA rights.

But as the sobering statistics that I just cited demonstrate, the EEOC has far more to do in outreach and education to assist this highly vulnerable population. Last year, recognizing the challenges faced by stakeholders at the outset of the pandemic, the EEOC took quick action to issue necessary technical assistance and updated that assistance multiple times over the year, most recently in December. We have not yet issued technical assistance on the question of vaccine incentives, as well as many other critical questions related to COVID-19. Today, I hope we will be able to hear those questions such that we can quickly issue technical assistance on these issues, and I stand ready to work with my fellow Commissioners to do so. Thank you.

Chair Burrows: Thank you, I appreciate it. And Commissioner Sonderling.

EEOC Producer: Apologies, we are having a technical issue, Commissioner Sonderling if you could begin again.

Commissioner Sonderling: Okay. Well greetings everyone. Special hello to all the witnesses today, thank you for participating in this important hearing. I know a lot of time and effort went into your preparation. For those of you watching on Zoom or listening on the phone, we appreciate your time and interest and hope to have you back in the hearing room soon. Today, we meet to discuss one of the foremost challenges of our lifetime, the COVID-19 pandemic. As we will explore during this hearing, the pandemic is much more than a public health crisis. It has created a crisis in the American workplace and for our workforce. For purposes of the EEOC, COVID has not suspended or diluted the protections of our federal anti-discrimination laws. If anything, it brought these laws into the spotlight.

The outbreak of the virus pushed unemployment rates to near record high and forced millions out of the workforce. Despite these challenging times, employers and employees are on the same page when it comes to a central workplace issue. Americans want to get back to work and employers want to safely welcome them back. The pandemic brought with it complicated legal questions for which there were no easy answers. Employers grappled with questions about how to control infection rates while also protecting their employees' health and civil rights. Throughout 2020, the dedicated staff of the EEOC mobilized to address these questions. Thanks to the leadership of the Commission, and the outstanding work done by the Office of Legal Counsel, the EEOC took a firm stand on many complex topics that allowed employers to rapidly adapt to the legal challenges presented by the pandemic and to implement health and safety protocols to protect their employees and customers without having to second guess their decision-making.

This is the same type of service the public expects from the government, not partial answers, leaving employers to make the ultimate decisions themselves and face significant liability if they guessed wrong. I am told repeatedly that the Commission's guidance was, and still is an essential resource for workers and businesses. I am extremely proud of the EEOC for setting an example for other federal, state and local agencies. But our work is not done, the Commission last issued guidance four months ago.

Thanks to advances in safety precautions, vaccinations, and scientific knowledge of the virus, we are in a better place today. But this new posture yields many novel questions that require additional guidance from the EEOC. We can build on the outstanding work by providing workers and businesses with clear, common sense guidance on returning to work and other timely issues. I believe it is our duty to do so in order for employers to be able to comply with the law and employees to know their rights. Ultimately, businesses must know that they will not be penalized by the federal government or through private litigation for taking bold steps to help their workers thrive during the pandemic and ultimately return to the workplace.

To date, the EEOC's guidance has been broadly applicable. Moving forward, the EEOC must begin to answer industry specific questions to address the array of issues that are becoming prevalent as the pandemic enters its final stages. Businesses are now navigating through a new generation of issues, including unanswered questions such as, what incentives can employers offer employees to get a vaccine? What are the best practices related to an employee who objects to a mandatory vaccination policy due to the FDA's emergency use authorization disclaimers? How do businesses choose which laid off or furloughed workers to recall without discriminating? Is a worker who is currently infected with, or was previously infected with COVID that has lingering health issues, disabled under the ADA? How do businesses process customer requests if they only want to work with employees who are vaccinated? Does an unvaccinated employee pose a direct threat to other employees or customers? How to deal with reasonable accommodation requests related to employee stress, or anxiety over fears of possible future COVID strains or a future pandemic, and address the issue that might arise when providing COVID related accommodations to some employees but not others?

As we hear from witnesses representing various industries, demographics and interests, today's hearing will provide us with valuable information on how the EEOC can answer these hot topics in an effort to provide the next level of guidance, so employers and employees can transition to the new normal for workplaces. Combating COVID has been an all hands on deck effort and EEOC has played and must continue to play a central role in the response. Again, thank you to my colleagues and today's witnesses, I look forward to your opening statements and the questions.

Chair Burrows: Thank you Commissioner Sonderling, Commissioner Lucas.

Commissioner Lucas: Good morning, today's hearing will consider the impact of the COVID-19 pandemic and workers, the difficulties faced by employers in navigating potential employment discrimination issues raised by COVID-19 and future challenges that the pandemic may present for employees and employers. I look forward to hearing from all of our witnesses and thank them for being with us today.

This past year, we were all faced with new and difficult challenges. We were forced to adapt our lives to a new normal, one that we hoped would last only a few weeks, but in fact, it lasted more than a year. Businesses had to find new ways to operate, parents became full-time teachers and tragically many individuals suffered great losses personally and professionally. True to the American spirit we persevered, and I am thankful that we are starting to see life return to normal again. As we navigate the end stage of the pandemic and look towards the return to normalcy, there is significant work to be done, and it is hard work that will require nuance, sustained effort, empathy, and individualized considerations. Let's see each worker as unique individual humans and each business as unique work environments. Throughout the last year, employers have turned to this agency for help navigating the many complicated issues presented by COVID-19. In December, the agency updated its guidance as the first vaccines were rolled out to essential workers.

Over the past four months, the dynamics of the pandemic have changed dramatically and we have yet to issue any updated technical assistance. The world has not remained static for us to opine far from it. Vaccines are now available to the general public, COVID-19 cases are rapidly dropping, potentially altering the direct threat in our landscape. Businesses are reopening their doors more than ever, including business sectors and types of office environments which may present different challenges to safely reopening, but also possibly different opportunities to accommodate workers returning to these workplaces. Public health guidance is changing. And as the world goes back to normal, it is imperative that the EEOC provide answers to critical questions, so employees are protected as they return to work. There is not a moment to lose. Every day that we delay, workers and businesses will be making decisions on their own, possibly based on inaccurate or incomplete information provided by other sources.

At the EEOC, we have a unique role in helping businesses and employers reopen and welcome back their workforces. Our role in compliance assistance, bringing awareness and spotlighting issues for employers, is just as important as enforcement actions we take. In fact, I would say it is more important that we educate employers and prevent discrimination from happening. We will have better served the American people. There's undoubtedly great value in impact litigation which the EEOC is well poised to engage in. But in the wake of multitude of harms from pandemic, every dispute and potentially months of accompanying protracted litigation before a worker may receive uncertain relief, that we help prevent, will help position workers to move forward from the pandemic. The mission of the EEOC is to prevent and remedy unlawful employment discrimination and to advance equal opportunity for all of us in the workplace. I take pride in advancing this mission every day, because I believe in the inherent dignity of people, all people. My life, both personal and professional is shaped on the belief that dignity belongs to every person.

I want to see every person flourish in society. And for that to occur, we must remember that there is dignity in work. No matter the occupation, there is dignity found and opportunity to work and earn a living. That is why we must work towards diversity inclusion. Not to just partially match workplaces and workers to external data, not to guarantee equal opportunity outcomes, but to recognize the worth of each individual and the value of giving everyone an equal opportunity to use their gifts and talents to contribute to our economy in our country. The dignity of work in each individual is one of the reasons I am passionate about increasing the employment rate for individuals with disabilities and encouraging and equipping employers to be more inclusive and accommodating workers with disabilities. As we will hear today, the COVID-19 pandemic has exacerbated the disenfranchisement of individuals with disabilities. The EEOC, the broader federal government, and society as a whole should be taking steps to ensure that as businesses and workplaces reopen, individuals with disabilities have the opportunity to be part of our country's workforce.

Currently, we are also in the middle of a national conversation about civil rights. These issues are important and should not be ignored. And we cannot ignore the impact the pandemic has had on workers and businesses, particularly on those that are most vulnerable. However, in the rush to right injustices, we should refuse to accept that the solution is to engage in discriminatory policies and practices. These policies will only further damage our society. Our mission is to advance equal opportunity in the workplace, not put a finger on the scale to force equal outcomes. Two wrongs will never make a right. We will not fix the serious challenges facing our nation's workers with quick fixes of quotas or the "right kind of discrimination" so-called anti-racist discrimination. To be clear, quotas based on race, sex or other protected characteristics are still illegal, even when faced with the grave impacts, the pandemic has brought on many racial minorities and female employees.

Likewise, there is no permissible form of discrimination based on protected characteristic. Even if the discrimination purports to save or not harm historically disadvantaged groups. But not only are quotas or anti-racist discrimination illegal, worse still in some ways is that these practices are sloppy and lazy. They are sold as quick fixes, but they do not do the hard work that is necessary. They do nothing to ensure the retention of employees, to ensure the healthy work environment and culture that benefits all individual workers, including in terms of working conditions, hours, expectations, and workaholism, respect for work-life balances and boundaries. The hard work that I referenced earlier in my opening may instead require efforts that actually cost employers something, such as accommodations, but they are not legally required to help integrate and retain employees with disabilities, women, caregivers, and indeed all employees recovering from a terrible pandemic that has harmed each and every one of us.

Finally, I’d like to remind everyone that there are complex factors at play in these issues. We should not be quick to jump to conclusions that everything can be explained by animus bias and discrimination. Instead, we should consider the broader picture and look to how we can advance equal opportunity in the workplace as we move out of the pandemic. I look forward to a thoughtful discussion with the witnesses today about these issues. Thank you.

Chair Burrows: Thank you, commissioners. It’s now my pleasure to introduce the speakers on our first panel in the order that they will be speaking today.

Heidi Shierholz is a Senior Economist and Director of Policy at the Economic Policy Institute, as well as the former Chief Economist of the U.S. Department of Labor. Her areas of expertise include labor and employment policy, wage inequality, labor force participation, and long-term unemployment.

John Yang is the President and Executive Director of Asian Americans Advancing Justice, and he leads the organization's efforts to advance civil rights through public policy, advocacy, education, and litigation.

Fatima Goss Graves is the President and CEO of the National Women's Law Center and a co-founder of the TIME'S UP Legal Defense Fund. She has spent her entire career working on issues central to the lives of women and girls, including income security, and COVID relief, equal pay, ending sexual harassment and violence, and workplace justice.

Johnny C. Taylor is the President and CEO of the Society for Human Resource Management, he world's largest HR professional association with over 300,000 members in 165 countries. During the Trump Administration, he served as Chair of the President's Advisory Board on Historically Black Colleges and Universities, and as a member of the White House American Workforce Policy Advisory Board.

Monica Ramirez is the Founder and President of Justice for Migrant Women and Co-Founder-of Alianza Nacional de Campesinas, The Latinx House, and Poderistas. She created the first legal project in the United States, focused on protecting the rights of migrant farmworker women, and she's recognized as a thought leader and prominent voice in the Latinx community.

Damon T. Hewitt is Acting President, Executive Director, and Executive Vice President of the Lawyers' Committee for Civil Rights Under Law, where he coordinates the organization's efforts to advance racial justice.

Welcome, and thank you again to all of our witnesses for being here today. As a reminder, you have five minutes each for your opening remarks. Our IT team will keep track of time and will use the chat function to alert you when your time draws to a close. We will begin with Ms. Shierholz.

Heidi Shierholz: Thanks. Thank you very much, Chair Burrows, Vice Chair Samuels, and Members of the Commission. Thanks a ton for the opportunity to testify today on this crucial issue. In my testimony, I'm going to give a very broad overview of the impact of the COVID pandemic on the labor market. And then other panelists will really dig in on particular aspects.

In sum, the damage has been dramatic. At the beginning of the pandemic, we shed 22 million jobs. Since that time, jobs have been returning, but an enormous gap remains. We still have 8.4 million fewer jobs than we did before the recession. And that is not the total gap in the labor market because before the recession, we were adding about 200,000 jobs a month. So at that pace, we should have added well over 2 million jobs since the recession began. So the total gap in the labor market is on the order of 11 million jobs.

Recession always hit low and middle wage workers the hardest, but the unequal impact of the COVID recession has been unprecedented. In 2020 as a whole, a quarter of workers with the lowest wages lost nearly 7.9 million jobs. While a quarter of workers with the highest wages, gained nearly a million jobs. I've never seen anything like this. This disparity has a huge amount to do with the types of jobs that were lost due to the public health nature of the recession. Sectors where work involves a high level of face-to-face interaction, which tend to be low-wage service sectors like restaurants and bars, hotels, personal services. These sectors got hit extremely hard.

From the beginning of the pandemic, it became very clear that there was just a crucial distinction between three types of workers: 1) essential workers; 2) workers who could not telework, but whose jobs were not deemed essential; and 3) workers who could telework. Because of dynamics like occupational segregation, discrimination and other labor market disparities related to structural sexism and structural racism, women and people of color were concentrated in the first two groups.

So the first group, essential workers, those are workers who put their health on the line and the health of their loved ones to keep society going during the pandemic, but they were often very low, paid workers and disproportionately people of color. The second group are workers who cannot telework and who were deemed not essential. These are the workers who were most likely to lose their jobs. Often low-wage service workers and disproportionately women and people of color. The third group, workers who could telework were the most advantaged in this recession and the least likely to face job loss, but the group was relatively small. Data from the Bureau of Labor Statistics show that at its peak in this recession, just over one-third of workers reported having telework or work from home because of the pandemic. And Black, Latinx workers were much less likely to be in this group than other workers.

One other factor that I think has gotten less attention that has led to greater disparities by race and gender in this recession is the fact that so many jobs lost in this recession have been in state and local government. Typically, these jobs are more protected, but in the COVID recession, a huge number of these jobs recessed immediately. And today, we are still down 1.2 million state and local government jobs. Given that people of color and particularly, women of color are disproportionately likely to be in state and local government jobs is just another dynamic that has generated more inequities in this recession than in prior recession.

All of these dynamics have contributed to large disparities in unemployment by race, ethnicity, and gender, with disparities by race and ethnicity being particularly profound. For example, right now, the overall unemployment rate is 6%, but the Black unemployment rate is 9.6% and the white unemployment rate, still high, is 5.4%. Further, these official unemployment rates are greatly understating the pain. For example, millions of workers who are out of work as a result of the COVID crisis are being counted as having bought out of the labor force instead of as unemployed, and that is because in order for a person to be counted as unemployed, they have to be available to work and actively seeking work. But during the pandemic, many people who are out of work as a result of the crisis, just don't meet those criteria. Many workers, particularly women are out of work because of care responsibilities as a result of COVID and many workers are out because of health concerns.

Accounting for workers who do not meet the definition of officially unemployed but are nevertheless out of work because of the coronavirus shock, the adjusted unemployment rate right now is 9.1% instead of 6%. And the adjusted unemployment rate is still well into double digits for both Black and Latinx workers. At 13.4% for Black workers and 11.5% for Latinx workers. Further, none of these calculations account for the fact that there are millions of workers that have kept their jobs but have seen a drop in hours and pay because of the pandemic. BLS reports that 5.8 million people who were working last month had been unable to work at some point in the last four weeks because their employer closed or lost business because of the coronavirus pandemic.

And then another dynamic we're seeing right now is that while unemployment is thankfully coming down, long-term unemployment is rising. Right now, nearly one in four unemployed workers have been unemployed for at least a year. Long-term unemployment is just a particularly devastating component of our K recovery. Many people who lost their jobs at the start of the pandemic have been unemployed ever since. These high levels of underemployment and long-term unemployment represented an enormous amount of pain that's just not captured by the unemployment rate alone. And Black and Latinx workers and particularly, Black and Latinx women, are those who are facing the highest levels of underemployment and long-term unemployment.

I'll end by just saying, the good news is the labor market is headed in the right direction. More than 900,000 jobs were added last month. And as we get the virus under control, the relief in recovery measures in the American Rescue Plan will continue to drive rapid and large increases in employment. It's very welcome news, but I think it's important to keep in mind that just returning to a pre-COVID state of the world, where we know there was skyrocketing inequality, for example, an unemployment rate for Black workers twice that of white workers, returning to that cannot be the goal. We have to seize this moment to build an economy that works for everyone.

Chair Burrows: Thank you, Ms. Shierholz. And I would go now to Mr. Yang.

John Yang: Thank you very much, Chair Burrows, Vice Chair Samuels, and the other Members of the Commission. It's a pleasure to be with all of you today. Let me focus on the Asian American community and the impact of COVID-19 on our community. The lives and livelihoods of our community have been hit hard, just like it's been hit hard for all Americans. During this time, more than 2 million Asian Americans and Pacific Islanders have been at the front lines of this crisis, working either in grocery stores, restaurants, hotel services, custodial services, household services, as well as in the healthcare industry.

A report from National Nurses United shows that 30% of nurses who have died during this pandemic were Filipino. Even prior to the pandemic, limited English proficient individuals have limited employment opportunities and often have difficulty accessing educational and training opportunities. During the pandemic, we have heard many stories of people's inability to access unemployment benefits. Asian Americans have suffered the largest increase in unemployment amongst all racial groups, going from 3.4% in February of 2020 to 25.6% in May of 2020. Almost one in four Asian Americans work in hospitality and leisure, retail and service industries, where unemployment rates have been as high as 40%.

Asian Americans often live in multi-generational households. These households tend to require more caregiving and keep some workers, particularly women, out of the job market for longer periods. Compounding this, as the schools open, Asian Americans appear to be staying home at higher rates, perhaps because of anti-Asian racism, creating even greater strain on the ability of Asian Americans to return to the labor workforce.

The other aspect of these devastating impacts on our community is the onslaught of anti-Asian hate, with our community being wrongly blamed for the COVID-19 pandemic. This same anti-Asian hate has expectedly impacted our Asian American communities. As noted in a report by McKinsey & Company, “misguided fears of the virus effectively shuttered businesses in many Asian American cultural districts a full month before lockdowns began nationwide.” Asian American-owned businesses are overrepresented in some of the sectors that have suffered the worst economic effects of the pandemic, including a combination of food service, retail, and education services. And with a hateful act of anti-Asian violence, instilling fear in our business owners and our employees and in our customers, Asian Americans are doubly threatened with both their financial and physical security risks.

Since February 2020, Asian Americans have recorded over 4,500 hate incidents, including workplace discrimination, refusal of service, and being barred from public transportation. A group called Stop AAPI Hate reports that businesses are the primary site of discrimination at 35.4%, and workplace discrimination incidents account for 4.3% of the incidents being tracked. And we know that unfortunately, Asian Americans and Pacific Islanders, particularly women, tend to underreport instances of discrimination and harassment at work. Thus, this data only shows the tip of the iceberg.

Look, while there are no easy solutions, there are a few steps that we can take to collectively minimize the harm in the short term and create broader institutional changes in the long term. We have welcomed the efforts of the Biden Administration in condemning anti-Asian hate and violence in no uncertain terms, and that provides a beginning. But more work must be done to ensure that within local communities, issues of anti-Asian racism, hate and violence are understood by those in a position to help. This includes local governments and government services, businesses, and other places of public accommodation, working together with local advocacy and service organizations that serve these impacted communities.

What does this look like? There are some questions that we should ask in terms of what support can be offered. You know, what reporting and support mechanisms can an employer offer if an employee experiences anti-Asian racism? Are employees trained to respond if there is an act of hate within a store at that place of business? Are employees trained to identify these hate incidents and find a way to intervene or de-escalate the situation?

In a May 2020 letter, the U.S. Commission on Civil Rights emphasized that government efforts to adjust discrimination against Asian Americans must always take into account the critical requirement to provide for language access for limited English populations. In accessing essential government services, we must make sure that there is language outreach and ensuring that these translated materials are readily available, and the agency staff are trained to assist individuals with limited English proficiency.

Training and education is key to ensuring that we prevent, de-escalate, and provide support when customers or employees become targets of hate incidents. For larger businesses and financial institutions, they can engage further and devote resources to practices which support the local Asian American community in which they are serving.

The solution to this moment is to address not only the crisis at hand, but also to implement systemic changes that really help to drive this progress forward. Thank you very much for holding this hearing today. I look forward to your questions.

Chair Burrows: Thank you, Mr. Yang. Ms. Goss-Graves.

Fatima Goss-Graves: I'm Fatima Goss-Graves, President and CEO of the National Women's Law Center, and I want to thank Chair Burrows, Vice Chair Samuels, and all the Members of the Commission for the opportunity to provide this testimony today on some of the pandemic’s implications for women's civil rights in the workplace.

The COVID-19 pandemic has exposed and exacerbated existing gender inequities, including workplace discrimination and harassment. As you heard, women are overrepresented in essential frontline jobs where they risk their health and their safety, even as they are often paid less than their male counterparts. And women in lower paid frontline jobs have faced a heightened risk of job loss, especially Black and Latina women.

The pandemic has also created new workplace discrimination risks for pregnant workers. The COVID-19 infection rate in pregnant people is 70% higher than similarly aged adults. Pregnant people are at an increased risk for severe illness from COVID-19. At the same time, some of the lowest paid jobs have some of the most rigid rules that can compromise prenatal and postpartum health and especially meaningful concern for Black workers who are overrepresented in these fields and also face an alarming maternal mortality rate. For example, one of the occupations with the largest share of pregnant workers is nursing and home health aides. These jobs are frontline. They are physically demanding, and they also put workers at increased risk of COVID-19. During the pandemic, an appropriate accommodation could be something like a placement in a non-COVID wing of a healthcare facility or a modified schedule to commute at a time when public transport might be less crowded.

The Supreme Court's 2015 decision in Young vs. UPS affirmed that the Pregnancy Discrimination Act often requires employers to accommodate pregnant workers. However, too many lower courts have misapplied the Young decision, requiring an inappropriately demanding comparator standard in pregnancy accommodation cases. So there's a real need for EEOC guidance and enforcement to address this misapplication of the Pregnancy Discrimination Act, which the pandemic has only worsened.

The COVID-19 pandemic has also heightened the risk of sex-based discrimination against caregivers. As childcare programs have closed, or schools have shifted to remote learning, studies of parents with young children have found that mothers were four to five times more likely than fathers to have to reduce their work schedules or adjust their schedules because of caregiving. And as a result, many women have been forced out of the workforce entirely. Research from before the pandemic was already showing an increase in instances of discrimination against caregivers. Experts anticipate that the pandemic will only accelerate this trend. For example, Drisana Rios was working from home while caring for her young children when her boss told her that she had to take care of her kids' situation because they can't have client calls with kids or noise in the background, and she was ultimately fired.

Similar stories like this one that was reported in the New York Times are unfortunately all too common. Through our legal network for gender equity, we have heard from individuals expressing fears that their caregiving responsibilities will have long-term impacts on how employers treat them.

One worker reported that she lost her job responsibilities at the beginning of the pandemic because she had to care for her children. Now that she's able to find childcare, her responsibilities still haven't returned. And she now worries she will soon not have a job at all.

Employers need 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, including around allowing employees to have increased control over their schedules and modifying rigid attendance policies. They also need to know about their rights, employees need to know about the right to be free from discrimination against gender stereotypes about caregivers.

Finally, the EEOC should make clear and remind employers that facially neutral practices, like even a requirement that employees have a completely open availability to be scheduled at any time during full-time hours. Those can have an unlawful disparate impact if they disproportionately harm women because of their greater caregiving responsibilities. These recommendations and others are set out in greater detail in my written testimony. Thank you again for the opportunity to address the Commission and for taking on this really important issue at this time to ensure that all individuals can work with equality and safety and dignity.

Chair Burrows: Thank you, Ms. Goss-Graves. Mr. Taylor.

Johnny C. Taylor: Chair Burrows and distinguished Commissioners Samuels, Dhillon, Sonderling and Lucas. Thank you. Thank you for having us here. I'm Johnny C. Taylor, Jr., President and CEO of SHRM, 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 together impact the lives of more than 115 million workers and their families every day. Again, thank you for this opportunity to testify before the U.S. Equal Employment Opportunity Commission on the civil rights implications the COVID-19 pandemic has imposed on workers and their workplaces.

COVID-19’s impact on work simply cannot be overstated. According to SHRM research, the pandemic's consequences have 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. The multiple responsibilities related to caregiving and work have disproportionately impacted women, as you've heard earlier, their mental health and their ability to focus on career growth.

Older workers, and workers with disabilities have also experienced greater instances of pandemic related job loss. Just three months into the pandemic, in July of 2020, 13% had been laid off and over 1 million have now left the workforce permanently. Similarly, 38%, nearly 40% of persons with a disability reported being laid off, furloughed, or forced to shut down their businesses due to COVID-19. And two-thirds expect acute economic insecurity over the next year. This trend sadly reverses the remarkable gains made by people with disabilities over the past decade.

As people return to the physical workplaces, yes, physical workplaces, several civil rights implications are emerging, and we're counting on you all, the EEOC, for guidance.

Number one, vaccines. Given the critical role vaccinations play in safeguarding, the health of all workers, especially older workers, and those with certain disabilities, SHRM believes the EEOC should issue clear and timely guidance to help employers and HR professionals navigate those issues. We want to do the right thing, but we really are relying on your guidance. These include policies around prioritizing vaccinated over unvaccinated workers in their return to workplaces, whether to separate them in the workspace, how employers can manage health-related accommodation requests to work remotely. And most importantly, understanding the guardrails on vaccine incentives given the withdrawal of the EEOC's proposed wellness rules.

Secondly, harassment. In light of increased reports of COVID related harassment and violence against minorities and underrepresented workers, SHRM encourages the EEOC to update its widely used and practical guidance from 2017 to include best practices to help employers prevent harassment against minorities and underrepresented individuals as a result of COVID-19.

Finally, with respect to caregivers, SHRM encourages the Commission to provide guidance and incentives to employers to embrace and support caregivers, they're again, primarily women and women of color, so that we can relieve certain negative impacts of COVID-19. SHRM supports the EEOC's recommendations and its best practices for workers with caregiving responsibilities document, but we hope it will consider stating in its enforcement guidance, compliance manual or elsewhere that if employers implement these practices and train their managers accordingly, they can create a rebuttable presumption of non-discrimination in the event of a discrimination claim by a worker with caregiving responsibilities. This will give employers another strong incentive to create more flexible work environments. SHRM pledges to work with the Commission as it addresses the issues I've outlined above.

Now, finally, I want to make an appeal to businesses across the nation. We face an empathy deficit today in our country that significantly impairs our ability to provide every American worker equal opportunity to work and to do so free from harassment and discrimination. While the EEOC's efforts will go a long way toward addressing workplace equal opportunity, we at SHRM are convinced that the only way we can realize our goal is to increase empathy in the American workforce. Think about it. We've had laws on the books forever about sexual harassment and other workplace forms of discrimination. But at the of the day, it is empathy that keeps us all doing the right thing.

If enforcement and big-dollar settlement announcements could alone stem workplace harassment and discrimination, we wouldn't need to be here today. After more than six decades of enforcing the equal employment opportunity laws, we still find ourselves having to ensure women, underrepresented minorities, older workers, and the differently abled have equal opportunity at work. So we posit that adding a focus on empathy in the EEOC's work might help us address this taxing social challenge. And so it doesn't demand that we all agree, but it does enable us to perceive and consider someone else's point of view. And it's not a soft skill, it's a business skill, and it correlates directly to productivity, employee engagement, and most importantly, inclusion.

Building our empathy muscles will be critical to economic and business recovery because empathetic workplace cultures retain the best and perform the best. And I'm happy to report that almost half of HR professionals SHRM surveyed believe they will make a positive business impact by creating a more empathetic and inclusive workplace culture.

With empathy and our strategies and HR leaders on our side, I am optimistic that American businesses will not only recover, but they will reignite. Thank you, and I look forward to your questions.

Chair Burrows: Thank you, Mr. Taylor. Ms. Ramirez.

Monica Ramirez: Chair Burrows, Vice Chair Samuels, and Members of the Commission, thank you for the opportunity to participate in today’s hearing to testify about the civil rights implications of the COVID-19 pandemic on migrant women workers, including farmworker women.

As the global pandemic unfolded, thousands of workers across industries were called upon to continue to do their work, business as usual, to keep the world running. Some of the least visible workers were deemed frontline and essential during this crisis, including migrant women, who we serve through our organization, Justice for Migrant Women.

According to a study published in April 2020 by the Center for Economic and Policy Research, “Women are overrepresented in frontline jobs and 41.2% of frontline workers are Black, Latinx, Asian American Pacific Islander, or some other category other than white.” In addition, many of these workers are over the age of 50 and live in poverty.

Today, on this World Day for Safety and Health at Work, we must acknowledge that one of the biggest civil rights crises of our time is employers’ failure to create terms and conditions that adequately protect the very lives of their employees.

Over the past year, workers including immigrant workers have navigated through fear and confusion while enduring a range of hardships. Some of these workers were guest workers who've been brought to United States and who were subject to employers' decision to make changes to keep them safe in their housing, transportation, and workplaces like nearly 200 farmworkers in Tennessee and 169 farmworkers in New York who contracted COVID while in the U.S. as guest workers.

They, like other essential workers, have been treated as disposable. The consequence of this crisis has been that an estimated 560,000 positive COVID-19 cases and more than 9,100 deaths have occurred among farmworkers as of April 2021. There was a 59% increase in mortality among Latino food and agricultural workers alone in the State of California from March through October of 2020. Between 236,000 to 310,000 COVID cases and 4,300 to 5,200 deaths are attributed to livestock plants across the U.S. as of July 2020. Reports revealed that supervisors at a Tyson plant in Iowa placed a bet on how many workers would contract COVID. It is estimated that more than 12,500 Tyson Food workers contracted the virus.

An article published on April 29th of 2020 by the Center for Economic and Policy Research indicates that 44% of meatpacking workers are Hispanic and 25% are Black. It is also stated that more than half of frontline meatpacking workers are immigrants. This is just a snapshot of some of the industries and some of the data. We may never have a full picture of this crisis, but what we do know is that there have been devastating consequences for workers and their families while many of the companies that they worked for experienced a financial boon.

I call upon the EEOC to take a close look and investigate the civil rights implications that have resulted due to the actions and inactions of companies that literally costs thousands of workers, their families, and other community members their lives, not to mention the terrifying and life altering experience of contracting this virus.

These consequences have been especially acute for the lowest paid and most marginalized workers among us. We must call to question whether companies where large- and small-scale outbreaks occurred, affected workers who held jobs and all ranks of those workplaces, or whether certain classes of workers and by extension, certain classes of people were better protected by their employers during this pandemic. Further, we must question the impact that discrimination and bias has played in the decision-making process of whose lives were deemed worth protecting and which workers enjoyed the benefits of workplace protections.

I contend that one day we will see clearly that it was not by chance or by accident that Black, brown, indigenous immigrant and other workers across our nation were the hardest hit by COVID from infections to death. But we have an opportunity to address these issues now through updated company policies, scrutiny of company hiring and onboarding in the aftermath of this crisis, more robust worker education efforts by the EEOC, and meaningful attempts to investigate EEO complaints in a timely manner. As we reflect on the way forward, we must never forget that this moment that we are contending with and the way that we manage it will make a difference between whether people will live or die literally. Thank you.

Chair Burrows: Thank you, Ms. Ramirez. Mr. Hewitt, you've been waiting patiently. Go ahead.

Damon Hewitt: Thank you so much Chair Burrows, Vice Chair Samuels, and other distinguished Commissioners Dhillon, Sonderling and Lucas. Thank you for the opportunity to join you today to talk about this important issue, which I think we can quite well frame as a civil rights crisis, as a racial justice crisis facing America's workers and employers nationwide.

My name is Damon Hewitt. I'm the Acting President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law, an organization founded at the behest of President Kennedy in 1963, to mobilize the private bar to address these very types of issues where we see broad implications for racial justice and civil rights.

I want to build upon the comments of the prior witnesses, who so eloquently spoke about various details and aspects of the crisis. But what I really want to do is explain in starker terms the context in which the EEOC is called to act. And that you're facing, and frankly, have been facing for the last year.

As other witnesses have noted, the COVID-19 crisis and the pandemic has hit workers and individuals unevenly. In fact, it's really exacerbated a longstanding racial health and economic disparities, resulting in higher incidents of COVID-19 infection and death in communities of color. Millions of Americans have also lost their jobs. We've discussed it as well.

We know that the essential workforce, these critical infrastructure workers are disproportionately comprised of people of color, people with disabilities, low-wage workers, and women. We also know that due to systemic health inequities, these workers of color are more likely to suffer serious COVID-19 infection and death rates as well, and also to be long-haulers, which I hope to talk about in a minute. But despite all of these risks, the EEOC has not been found great partners in enforcement and also guidance. Unfortunately, in the prior leadership, the CDC itself issued some very disturbing early guidance, advising that critical infrastructure workers may be permitted to continue working even after exposure to COVID-19 if they remain asymptomatic. Now fortunately, the Lawyer's Committee and others submitted a request for correction and that guidance was changed to make it the same as it is for everyone else in the country, that if you have exposure, you should quarantine for at least 14 days. But I think what you see in that is just instinct, which is troubling, that workers are so important not that we have to protect them, but workers are so important that they should be continuing business as usual, and that's exactly the opposite of what we should be doing. At the state level, there have been some problems as well. For example in North Carolina, we filed litigation regarding some particular problems, and in that state in which there was just an abject failure frankly to adhere to particularly guidelines at the state level and the federal level with respect to protections for COVID impacted workers.

I want to just talk about this context in which the EEOC has to act as one in which it really is not one that smacks of opportunity or frankly dignity as I know Commissioner Lucas alluded to earlier. It is the crisis that Vice Chair Samuels talked about in her opening remarks, and you're seeing it already. As a commission in 2020, even as the economy contracted and millions lost their jobs and livelihoods, the EEOC received nearly 70,000 charges of discrimination, and so we can only expect those numbers to increase, especially as people are starting to be brought back into the physical workplace or whatever the new normal is for the workplaces, if they can find jobs in the first place. But we also have to remember that there are long-term consequences that these challenges will outlast whatever the length of the pandemic actually is.

There's going to be an aftershock, so to speak, in earthquake terms, well beyond the end of the medical pandemic is declared by medical professionals. So these challenges really call upon the EEOC to use all of the tools in its toolkit. Now, I elaborate on some of these points in my written testimony, but I want to offer and highlight a few specific recommendations here. One, as others have alluded to, we have to ensure that we fully explore the applicability of the ADA, the Americans with Disabilities Act, for employees who are experiencing the long haul COVID symptoms.

Sadly, we too often focus only on deaths. Those of us who have lost loved ones, obviously, it's important, but that's not the only negative outcome of the virus. We know that the CDC lists a multitude of long-term effects of non-fatal effects of infection, including fatigue, ongoing chest pains, headaches, intermittent fevers, hair loss, memory problems, depression, inflammation of the heart and muscle, lung function abnormalities, acute kidney injuries and the like, and the many workers who experienced these long-term effects that the long haulers as we call them or people who are left frankly physically or even, sometimes mentally impaired and unable to work in a way that they previously did.

They are frankly ripe to face discrimination too frequently and too soon and never. Because of the nature and length of their symptoms, we believe the ADA can afford legal protections to these workers. Specifically, employers should provide a reasonable accommodation to long haulers such as modified work schedules, or the ability to work from home, or with other accommodations. It's the right thing to do when it's legally required. Another recommendation is to ensure that individuals who are impacted in this new norm when this new economy, as it were, can continue to benefit from affirmative action provisions among federal agencies. We've submitted comments and in testimony and otherwise about the importance of making sure that the people who have been left off historically and the people who were shown the door during the pandemic, actually have a chance to get back in and get back in the right way.

We know the issues are intersectional, Black and indigenous people have higher rates of disability than other groups, and we think those are the groups that are most likely to be impacted. But you can look across the board in terms of historically marginalized identities in terms of who may be impacted. Finally, we urge the EEOC to reverse its recent changes to the conciliation process that make your enforcement duties much more burdensome. There's a controversial rule that was promulgated. It essentially kneecaps the EEOC, makes it very difficult for you to do your job. We want you to be that partner. We want you to be that guiding and shining light for sister agencies and for the American workplace and employers as well. I'll close with those comments and happy to answer questions that commissioners may have.

Chair Burrows: Thank you, Mr. Hewitt and all of our panelists. We will now proceed with our first round of questions from members of the Commission to the panelists. Each commissioner will have five minutes for questions during this first round, and we'll begin with the vice chair. I will defer my questions to the end, Vice Chair Samuels.

Vice Chair Samuels: Thank you so much Chair Burrows, and thank you to all of the witnesses for those eloquent, sobering statements. We've learned so much from your presentations, and I am grateful to all of you for having brought all these issues to our attention. I have many, many more questions for this panel than I will have the time to ask. So for this first round, I just want to focus on your perceptions about the ways that the EEOC can best add value as we continue to recover from the pandemic and as workplaces begin to reopen, and I guess this first question I would address to Ms. Goss Graves and Mr. Hewitt.

Ideally, we would have the resources to be able to address all of the problems that you both have identified and made, your co-panelists have identified. But as we are thinking about best focusing the resources we have available, where do you suggest we use our efforts to best help mitigate the impact of the pandemic? Is it addressing barriers in hiring? Is it retention on the job? Is it terms and conditions like compensation, discrimination, or harassment, or treatment of pregnant workers? Is it ensuring that we provide reasonable accommodations where they are necessary to enable people to do their jobs? I'd appreciate any thoughts you have on that, and I guess I'll call first on Ms. Goss Graves.

Ms. Goss Graves: Thanks for that question, vice chair. I will say two things. I don't like making choices, but if you're asking me to make choices, I'll say two things. The first is around retaliation. I have deep worries that a lot of job layoffs but also changes in work schedules, denials of requests to work remotely, other types of conduct will show up in ways that are really retaliation, so the Commission speaking to these things is really important. And then the second thing, and it's very much related to caregiver discrimination and retaliation, and how they may go together is that we are in the midst of a dramatic care crisis in this country, and even as more jobs are going back, that is not necessarily the case for caregivers who are still really struggling. So I think speaking to both the caregiver stereotyping but the many types of seemingly neutral practice that have a disparate impact on caregivers. So very urgent right now in light of the job loss for caregivers.

Vice Chair Samuels: Thank you so much. Mr. Hewitt.

Mr. Hewitt: Thank you, Vice Chair Samuels. I would agree with Ms. Goss Graves on that first point in particular. The conditions that the workers are facing, the fear that some have of losing their livelihoods, especially in households where you may have one breadwinner, even if there are multiple people who could be working it’s hard to find stable employment these days that is also safe. So the stress and strain that workers are under, and just to know that they may actually face discrimination, retaliation even if they have a job is frankly just untenable. So I think that should be an area of focus.

I would also say beyond enforcement, there's also part of the EEOC's mandate to try to address and stop discrimination before it occurs through your guidance. I certainly support continued updates to guidance, but certainly not one that gives the signal that we're all clear, mission accomplished, because in fact, it's the opposite. I think there's the hidden toll that should be lifted up in terms of additional guidance, and I think being proactive is important. I think the EEOC can, will, and historically has had a positive impact on other government agencies, those who have enforcement authority and those that do not.

Vice Chair Samuels: Thank you so very much. Chair Burrows, do I have time for another question?

Chair Burrows: You have 30 seconds.

Vice Chair Samuels: 30 seconds, all right. Well, this is a question for Ms. Ramirez. In your written testimony, you indicated that EEOC needs to explore alternative ways to reach hard to reach communities including migrant workers, meat packing factory workers, and the like. I'd be interested in your suggestions in that regard, particularly for people who don't have regular access to technology and may have language barriers as well.

Ms. Ramirez: Thank you for that question. I would say that it's essential as always for the EEOC to be partnering with groups that are working close to the ground. Many of us are trusted by the community and are actively working to do outreach in the community in different languages. The EEOC, because it is a government agency, there is still fear amongst migrant workers, many of whom are immigrants or some of them are undocumented, and so I would say that those close partnerships will continue to be important. We know that the internet access is not something readily available to many of the workers that we work with. So on the ground, thinking about outreach to workers directly, which I know agencies have put a pause on because of the fear of the spread of COVID, but we have to explore ways to make sure that those workers don't remain even more isolated than they currently are.

Vice Chair Samuels: Thank you so very much. I appreciate it, and look forward to my second round.

Chair Burrows: Commissioner Dhillon.

Commissioner Dhillon: Thank you, and I echo Vice Chair Samuels thanks to all of our panelists. I have some questions for Mr. Taylor, starting with, for those employers and employees that have been teleworking for an extended period of time during the pandemic, how are your members analyzing whether in-person work is an essential function of their jobs? And what is it that the EEOC could potentially do to be helpful on this topic?

Mr. Taylor: Thank You, Commissioner Dhillon for that. This is one of the most troubling questions for employers right now. We are trying to balance what's in the best interest of employees. We obviously all want to be great employers while at the same time addressing the situation, the crisis that we face. Many of the American employers are small and medium-sized businesses who really cannot afford not to have employees working in the workplace and doing their jobs well. We're more than willing to make appropriate and reasonable accommodations, but it's really, really difficult right now. So employers are trying to consider factors such as essential job functions. What are they? Organizational culture and mission, productivity, employee mental health, sustainability of remote work, diminished returns and deficiency from extended remote work. We're looking at collaboration needs and long-term resources to support a remote work population. SHRM recently, our research recently found that workers who continue to telework are more likely to report often experiencing depressive symptoms compared to those who have returned to the office, and nearly one-third are reporting increased fatigue, or having little energy.

As extended remote work continues for some personnel, and we are doing that, we are seeing gains in the percentage of employees across industries, experiencing depression, hopelessness, feeling of failure and reduced concentration. All of that obviously directly impacts an employer’s product and/or services. EEOC’s partnership in establishing best practice guidance when safely returning employees to physical work sites, safety standards, and vaccination education are areas where the EEOC could assist stakeholders during their operational analysis.

Additionally, guidance on how the factors above, the ones that I've described, and other legitimate business considerations should be analyzed by employers would also be very instructive. We need to understand how the EEOC views the one-year pandemic telecommuting, when an employer wants to bring employees back to work, and an employee on the other hand wants to continue telecommuting sometimes because they just want to, or for disability reasons. That's really complicated for us to sort, first of all, is this just because you prefer to work remotely or indeed your disability is impacting you and you're in need of a reasonable accommodation. These are the sorts of issues that we're trying to sort, and the more that you all can do to provide guidance urgently to us, we can actually avoid some of the negative outcomes that we're hearing about.

Commissioner Dhillon: Thank you. That's very helpful. Relatedly, for those employers who have workforces where a large proportion of their employees have been teleworking, do you have a sense or your members telling you what they're viewing as a timeline for when they expect their employees to start coming back into the office?

Mr. Taylor: Yes. So we're hearing the reports, the first wave largely of employers are now saying July 4th, right after the Independence Day holiday, and then for employees, the second wave is right after Labor Day, and that's because presumably children will be going back to school and there'll be less childcare concerns for our employees who are having to take care of their children who can't find the appropriate childcare and or schooling. So two waves, July 4th, we're hearing right after that, and then the largest wave will be right after Labor Day.

Commissioner Dhillon: All right. Well, that's very helpful in terms of how we think about the timing of our work. And then finally, another question for you, what forms of EEOC outreach are most effective for your members and their employees?

Mr. Taylor: Yes. So actually the sessions like the hearings like this are very, very helpful, but anything that we can do to provide technical assistance sessions like this have a lot more detail by the way, so that employers can pose questions to the EEOC. They want to not find themselves in an enforcement situation or on the opposite side of the EEOC. So anything that you could do in sessions like this, where you can actually hear the situation. Writing is good. We'd love to be able to submit for written guidance, but having conversations like this so that you can understand the nuance that employers are having to deal with, and we can understand the limitations and/or the legal obligations that you have would be helpful.

Commissioner Dhillon: Thank you. That's very helpful. I think my time has expired.

Chair Burrows: Thank you, Commissioner Sonderling.

Commissioner Sonderling: Thank you. My first question is for Ms. Goss Graves. Last year, the number of sexual harassment charges submitted to the EEOC reached a ten-year low. The EEOC is spending years combating sexual harassment and its efforts to mitigate it appear to be paying off. However, this should not give us a cause for complacency, nor must we allow the pandemic to reverse the progress we've made in combating sexual harassment. Your written testimony, your opening statement discussed at length the unique issues women face during the pandemic.

So I have two questions for you, first, related to sexual harassment claims that have arisen due to the pandemic. What new and unique types of harassment are you seeing and how can the EEOC provide compliance assistance to prevent these new claims so we can continue this downward trend? And then following on that, this is a question I'm also going to be asking an employer group later to hear their perspective on the same exact issue. So with many employees working remotely, because of COVID, what are the best practices for employers to ensure harassment claims are reported in a remote workplace, especially at a time when they may be feeling especially vulnerable through retaliation as you discussed in your statement?

Ms. Goss Graves: Thanks for that question. The first thing that I would say is there is a long-awaited guidance on sexual harassment that releasing that guidance from the EEOC can make a difference. Sometimes you see more claims after people are reminded both that they have rights and that the EEOC is open and ready to receive them. I think and hope that that guidance will also include reminders of retaliation. What we have found is that in our intake at the TIMES’S UP Legal Defense Fund, is that about 7 out of 10 people report that when they experience harassment, they are also experiencing retaliation when they try to use their employer’s systems. But I do think it's important to speak to what harassment is looking like in the context of COVID. People might be under the misimpression that just because people are working virtually that harassment doesn't occur. It's occurring, it just happens virtually.

And many people are working in person and on frontline, and there's a report out, for example, from One Fair Wage and TIME’S UP that talks about the harassment that restaurant workers face where workers were asked to pull down their mask so that they could see how pretty they were, and based on that, I think speaking to what that looks like is really important. Then the last thought that I have is around reaching workers in this time. You've heard a lot today about the deep worry and concern about just keeping a job, which makes people less likely to come forward because of that whole retaliation thing, one of the things that the EEOC might consider is doing something like establishing a confidential tip line so that it has more awareness of the types of harassment that is happening in particular sectors, and people take less risks in sort of raising the flag and learning around the problem.

Commissioner Sonderling: All right. Thank you very much. My next question is for Mr. Yang. Mr. Yang, your testimony mentions workplace training that can help equip people with the means to prevent, de-escalate, or provide support if anti-Asian discrimination happens in the workplace. Since COVID, there has been a heightened awareness of discrimination towards the AAPI community. So as president of the Asian Americans Advancing Justice, how can companies prevent this type of discrimination in the first place and what guidance is needed from the EEOC on this topic?

Mr. Yang: Thank you very much for that question. I think there's a couple of things that companies should be thinking about. Number one is simply to have internal conversations using their ERGs to have these candid conversations about racism and how all of us are facing it in different ways and making sure that their employees feel seen and feel heard, and that will also inform, depending on the size of the company, the types of issues that they're facing, the types of anti-Asian hate, or any type of anti-racist hate that they're seeing.

So that would be one component with respect to the employees themselves, what they're doing, how they can address it, right? And that goes to the workplace discrimination component, if you will. The other component though goes to sort of these anti-Asian hate incidents that we are seeing, and this could look in different ways. If you're at a retail store, right, whether it is two customers interacting. Then what is the obligation of the store to intervene? What is the moral obligation of the store to intervene? One of the things that our organization offers is what's called bystander intervention training. It allows people some tips to act in that moment. We're not asking people to get into physical harm's way. Certainly, we're not asking people to put themselves in an uncomfortable situation, but there's so many little things that can be done to de-escalate the situation.

And just as importantly, even if you don't act in the moment to make sure that that victim feels protected. One of the things that we found in talking to victims and offering this training is one of the things that comes out the most is not so much that these victims want someone to help them even, or that they feel like they wish someone could've stood up for them. It's after the fact, they wished that someone just came up to them and said, "Hey, that was really wrong. I'm here. What do you need? How can I help you now?" Right. Just that ability to be seen, to be heard, and provide that service afterwards is something that is important.

So in terms of what the EEOC can do, I think it is to provide guidance, provide some sort of, whether it is these types of hearings [inaudible 01:28:23] with employers to talk about these issues. Because I do recognize that how you respond for different employers depends on the size of the employer, depends on what industry you're in. The retail industry will look different than the hospitality industry, et cetera. So we [inaudible 01:28:37] live responses, but the start is with the conversation itself.

Commissioner Sonderling: Thank you all very much.

Chair Burrows: Thank you. Commissioner Lucas.

Commissioner Lucas: Thank you. My first question is directed to Ms. Goss Graves. Your testimony discusses the impact the pandemic has had on caregiver responsibilities and the need for employers to support people with caregiving responsibilities. I certainly agree with you that this is an important issue for many women in the workforce. One that I've seen firsthand as a working mother of two young children, including one born earlier this year, my pandemic baby, and you raised the point that employers may screen out applicants with employment gaps in their resumes, and this could have a negative impact on many individuals, especially women who have left their job during the pandemic in order to care for their families. Screening out such individuals could also occur either as a result of individual decisions or perhaps also algorithm-based decisions, AI or other high technology. So my two questions are, how do you think the EEOC should approach tackling this issue? And then second, what best practices do you recommend employers implement to handle applicants with extended gaps in employment either due to the pandemic or caregiving obligations in general?

Ms. Goss Graves: Well, congratulations, first of all. I will say a couple of things. I really appreciate that you mentioned AI as a part of this, because it could be that some employers believe that they have just outsourced their approach entirely. And I think the EEOC reminding employers that that outsourcing, even through the use of technology, doesn't relieve it of its obligation and to ensure that its policies don't have a disparate impact on women for example. So if you have a rule that in this period where as we have heard, some schools have been shut down for a year or more some childcare is far less available. One in six childcare providers left during this pandemic and have not yet fully come back. So if you have a rule that's going to have a disparate impact on women outsourcing. It is not a solution.

I would also think that your reminders should be around also the biases that employers may be putting forward around caregivers. There are some caregivers who don't need any sort of accommodation right now, and others who do and a range of things in between and making decisions to hire or not hire based on perceived ideas and abilities around what women need to be able to do in the future is a real risk that we hear about, so speaking to that is important. And the last thing that I will say is it's important that employers not think too narrowly as we return to whatever new normal is going to be about who is going to need an accommodation.

And I think I heard earlier an important conversation about what that might look like for persons with disabilities that is a really important thing in terms of remote work. But I actually think the better approach as we have found is, if you are investing in the technology and the resources to enable a range of things that support your workers and ensure that they are thriving, you shouldn't make it extra, extra hard for your employees to access them [inaudible 01:32:13] . So providing not only specific requirements around the rules, but also the best practices, the things that we have learned this year that can work, that employers can do for something in the future. It can be really important.

Commissioner Lucas: And I noticed that you mentioned that employers need guidance on how to accommodate workers, and you listed a variety of policies. And so I hear you saying that flexible work, modifying attendance policies, telework policies, those can help not just women or caregivers, but all employees considering sort of the whole worker considerations. People have multiple personal obligations not just caregiving ones and helping accommodate people, not just those with specific protected characteristics. It sounds like that could help everyone.

Ms. Goss Graves: I actually think it goes in some ways to what Mr. Taylor's talking about with an empathetic workplace, that one of the things that we have learned in this last year is that it's going to take a lot to ensure that people feel tied to, connected and our ability to do their best work so it’s in the interest of employers to take that step, and empathetic workplace, I assume inherently includes not engaging in discrimination, bias, stereotyping, or harassment, and so I think that that is an approach that makes sense.

Commissioner Lucas: It looks like I only have 30 seconds left. So I did have one question about you focused a fair amount on wage gaps. So I had a question of the extent that the widening wage gaps are the result of our current economic crisis or to the pandemic. I wondered if you could explain a little bit more about how proactive measures by employers to review and evaluate their compensation data would counter wage gaps that were caused by the pandemic and not necessarily sex-based considerations?

Ms. Goss Graves: It's actually even more important to do it now because especially with employers having to shift systems probably pretty quickly, but some of them have had to go to remote really quickly. They may not be hearing incidentally of instances, and workers are far less likely to raise a hand and complain around discrimination in this moment, because they fear retaliation. So employers taking the steps to analyze their data, understand whether they have pay disparity problems and correct them, ensures that workers can be paid right the first time in an ongoing way. And if they have a fundamental problem that will cause pay disparities in the future, that's the type of thing that they can look at and understand. I really believe that most employers are not going to be seeking to turn information over to the EEOC that they haven't looked at, understood, and taken the opportunities themselves to correct. So it also helps employers get ahead of problems in ways that serve both them and their workforce.

Commissioner Lucas: Thank you.

Chair Burrows: Thank you, and I will be brief in my questioning. I wanted to first join in thanking everyone who has patiently answered our questions today, and also one of the most, if not the most reported basis of discrimination that we find here at the EEOC has been retaliation. And while overall we saw fewer charges filed, certainly, once the pandemic struck, we saw a skyrocketing of those charges in the area of retaliation. And the question I would have, and I would start, I suppose I would go through each of our witnesses, except for Ms. Shierholz I would start by saying, is that something that you all have found has made employees less likely to report? I would start, I guess, with Mr. Taylor and adding to that, are there things that the EEOC should be doing to get the word out? And for those of you who represent organizations that represent individual workers, if you could give us some concrete suggestions about how to do that.

Mr. Taylor: It would absolutely benefit all of us workers and the employers for the EEOC to disseminate information regarding what retaliation actually looks like, what illegal retaliation looks like, and how employers and employees can go about availing themselves of the investigation and enforcement rights, obligations of the EEOC. One of the things that we have noticed, and it's just fact, given the higher unemployment went, the more likely employees were not to file retaliation claims, even when there were truly justifiable instances of retaliation. And it was partially just practically they were concerned about not having a job at all, the argument being I'd rather have a bad job than no job at all in this environment.

And so what I think the EEOC can do, because none of us employers want to know that we have people managers who are retaliating against people that as Ms. Goss Graves mentioned it, it actually doesn't do us any good either to have employees not being able to bring their best selves to work. Because in doing that, we as employers don't get a fair return on our investment, our investment being paying them. So we think that the EEOC could do a phenomenal job of disseminating more information about what retaliation is and how employees who are negatively impacted can avail themselves with investigations around retaliation.

Chair Burrows: Thank you. I'll go next to Mr. Yang with respect to getting the word out, and I know that your testimony in particular. Well first, do you believe that there's retaliation and has increased potentially? But also whether or not that is true in general, I find that we would love to do more with respect to reaching AAPI communities, particularly those that are limited English proficient.

Mr. Yang: I appreciate the question. I think certainly retaliation is an issue, frankly, though. I think there's even a more base issue about knowing your rights and obviously retaliation is a component of it. But within the Asian American community, number one is unfortunately we don't have a large body of data on sort of why Asian Americans do not report, but sort of anecdotally, what we do know is more of it is based it appears on not knowing what your rights are and not knowing that this is something that is actionable. And I think this is absolutely the place where the EEOC can play a role, in not simply just disseminating information to employers, but working with truly local community organizations, to let them know what their rights are, have those community organizations, recognizing the limitations of EEOC's resources, have those community organizations do the translations and then they do the community sessions, to talk to their community about what those rights look like, where they go if they have an employment related discrimination claim, what their rights are after they report with respect to the potential for retaliation and the like. So that's what I would suggest, in terms of how we get more into this issue.

Chair Burrows: Ms. Ramirez, I know you spoke earlier to the outreach issue, I'd be curious if there are particular media. I know you said online doesn't work, but I'm wondering about radio and also what you've seen in the area of retaliation.

Ms. Ramirez: Yeah. Thank you. Well we have seen retaliation as an issue and I would say that in addition to working with grassroots organizations that are typically in partnership with the EEOC, there are new entities I think that need to be considered. For example, we're seeing more community members going to food banks, we’re seeing more community members going to mutual aid organizations. Those are places that should be considered as well and should be partners in getting information out about people's rights as well, generally, but as well around retaliation.

In terms of the kind of retaliation that we've been hearing about and seeing in the farm worker community in particular, because we've done quite a bit of work on the ground in the farm worker community over the past year in response to the COVID pandemic, we've been hearing a lot about retaliation when workers are asking for things like PPE, when they're asking to be kept safe in the workplace, because they don't feel comfortable, for very basic things like access to hand washing facilities and things that farm workers unfortunately don't always have, asking for time to be able to isolate, the space and some of the things that have been recommended by the CDC to keep people safe. When workers are asking for those kinds of policies to be implemented in their workplaces, they're being met with pushback and in some cases being retaliated against. So we have to think about retaliation, I think, more broadly than we have in past contexts because of the unique circumstances of COVID.

Chair Burrows: Thank you. I realize I am now over time. So I am going to hold the rest of my questioning for the second round, I want to observe my own rule. And I just would also like that before we break, we're going to take a lunch break and I would love to just, first of all, thank you again for your patience and just make sure that we are able to let folks know that before we go on break, a quick note for our virtual attendees... actually I think before we go on break, we need to, we're just going to do a 10 minute break now, but for those of you who are with us virtually, we should just let you know that there are 1,500 members on the Zoom today and it's unprecedented interest. So if you plan to come back after the break, which we hope that you will, you should stay connected during the break. If you disconnect, you may lose your place in the room. All right. So thank you very much. And we will now recess until 12:28. Thank you very much.

 

Chair Burrows: Thank you. And we're back for the second half of our first round of questions. I know some of our witnesses have time constraints, so I'll go straight to questioning by Vice Chair Samuels.

Vice Chair Samuels: Thank you so much, Chair Burrows. I have a question for Ms. Shierholz. You've described in some detail, the really disproportionate impacts of the pandemic on workers of color and particularly Black and Latinx workers and how much those reflect some structural inequities in the kinds of jobs, kinds of industries in which those workers are disproportionately employed. I'd be interested in your thoughts about how EEOC can best use the anti-discrimination laws to address some of those kinds of structural problems.

(Silence).

Did you hear my question?

Ms. Shierholz: If that was directed towards me, I'm so sorry, I did not hear it. I was having speaker problems and I came on and there was silence. And I thought, I bet... Sorry. Could you mind repeating your question?

Vice Chair Samuels: Of course.

Ms. Shierholz: I'm very sorry.

Vice Chair Samuels: No. My question is just that your testimony very eloquently talked about disproportionate unemployment and underemployment rates among workers of color and particularly Black and Latinx workers. And my question to you is, we are aware, and your testimony makes it clear, that these patterns are the result of long standing structural inequities, to what extent and how can EEOC best use the anti-discrimination tools that it has under the laws, to address these kinds of problems?

Ms. Shierholz: Thank you. Sorry to make you do that again.

Vice Chair Samuels: No problem.

Ms. Shierholz: One of the things that I go back to, and Fatima talked about this so eloquently, it's just, and I could go to this as an economist, the incredible importance of having good data on pay, so that we actually really know where the disparities are, we can really see them showing up. I just think that if we can't measure it, if we can't see it, we're not going to be able to do anything about it. So I returned to that as just a very core, a core part of the solution here.

Vice Chair Samuels: Thank you. That's very helpful. My next question is for Mr. Yang. You revealed the really startling statistic that unemployment among Asian Americans went from 3.4% in February of 2020 to 25.6% in May of that year. I guess I have a two-fold question, one is, do you have any sense of the gender breakdown or the breakdown among different Asian American communities in that statistic? And then second, do you have any indication or information about what caused that really startling level of job loss?

Mr. Yang: Thank you very much for that question. I very much also appreciate the question in terms of disaggregated data on our community, because that is so critical to understanding what is happening to the Asian American community. And the unfortunate reality is we do not have that disaggregated data. We do have anecdotal evidence as to how this is breaking down, and that anecdotal evidence is reflective of our American economy as a whole, which is there is a K-shaped recovery that is happening. So if you think about our small businesses, that really employ a lot of the backbone of the Asian American community, that is where you see most communities suffering. If you think about the nail salon, the dry cleaners, the small restaurants, that is certainly the community that has not recovered during this time. So it has not recovered in the same way that other restaurants, other industries have that are not Asian American.

So that would be one place that we would be looking at. With respect to gender, again, we do not have very good studies on that. But my guess is that based on studies more generally with respect to gender, that the same trends are playing out, because of the fact that Asian Americans are over-represented with respect to living in multi-generational households. And that means that we have a greater need for caretakers in the home, whether it's because of kids in the home or it's because of parents or grandparents of those kids in the homes. So at one place I would ask for is further studies, to really understand what is happening with respect to this, where are the communities that are lagging behind, and having that disaggregated understanding.

Vice Chair Samuels: Thank you so much. My last question very quickly is for Mr. Taylor, and that is, you talked about ways in which employers might want to distinguish between vaccinated and unvaccinated employees in terms of separation in the office. I wonder if there are other contexts in which you think that issue may arise, for example, work related travel or ability for people to bring children to employer sponsored daycare centers. And if you could say a little more about as a practical matter where this may happen in the workplace.

Mr. Taylor: Thank you, commissioner. You've pointed out the biggest issue is trying to determine how to do this at some point. There are some employers who are now announcing that they will require a vaccination, so they sort of solve it for you, if you are not vaccinated, say for of course ADA and religious accommodation under Title VII reasons, then they are saying we won't allow you to come back to work, so we won't have that as an issue. Where we do struggle is for the overwhelming majority of employers who have said, we're going to strongly encourage vaccination, but we also have obligations under OSHA to provide known hazards, protections against them and to reduce and minimize known hazards in the workplace.

So employers are not only dealing with, as you point out, people coming into work versus not coming into the office, but their children, childcare, especially for those of us who host childcare facilities, indeed, that is a real struggle for us. Because often times the very people who need to bring their children to work we're hearing are less likely to want to be vaccinated. We're seeing that show up, particularly in the African American community where there's been some reticence about taking the vaccine. So those two issues are real for us, and yes, it would help us quite a bit if the EEOC would provide us some guidance in that respect.

Vice Chair Samuels: Thank you so much.

Chair Burrows: Commissioner Dhillon.

Commissioner Dhillon: Thank you. My first question is to Ms. Ramirez. I was very interested in your comments about agricultural workers. We have Ms. Ramirez?

EEOC Producer: Sorry, Commissioner.

Ms. Ramirez: I'm here.

Commissioner Dhillon: Oh, excellent. Ms. Ramirez, I was very interested in your comments about agricultural workers and some of the unique challenges that I think the EEOC as an agency faces, as we try to serve them. Among them as you highlighted, or it can be working in remote locations, not large population centers, there may be language barriers, there may be issues where they're not comfortable working with a government agency because they have a perception of what or lack of understanding of what the EEOC is. It's concerns you articulate I've long shared. It's one of the reasons that I formed the Vulnerable Workers Taskforce at the EEOC to take a look at some of these issues.

And one of the things that the task force looked at and that we found, was that the EEOC physical offices are not ideally located, when it comes to serving the agricultural population in particular. The offices tend to be located in large population centers at a distance. So it's both difficult for EEOC employees to go to the work sites, and it's also practically very difficult for the workers themselves to come into the EEOC office. So I'd be interested in any thoughts that you have around what the EEOC can be doing differently, to making connections with that population.

Ms. Ramirez: Thank you. Well, I think this has been a longstanding challenge that the EEOC has been trying to address, and we're appreciative of the opportunity to partner with the EEOC and have been for many years, Bill Tamayo, in San Francisco has been one of our great partners over the years, trying to reach farm workers. Again, I think that we have to figure out how to have partners on the ground, who are working closely with the EEOC, who understand the charge of the EEOC, who are trained on what it is the EEOC does, so that when farm worker community members come into contact with the organizations, that they can also serve, to help refer individuals to the EEOC and to support the individual as they go through the charge process and investigation process.

We talked about this a little earlier about the outreach, using different mediums. So certainly engaging through social media, looking to media that is in the language that the worker speaks, predominantly the farm workers in our country speak Spanish, so Spanish language radio, Spanish language TV are always really important partners to get out the word. And the EEOC and the Youth@Work project is very important because many farm worker children work in the fields. As of the age of 12, kids can work in the fields. And many of those children take information back to their parents as well. So I think engaging with farm worker youth and through farm worker Migrant Head Starts and other farm worker educational programs is another way that I think the EEOC can do better trying to get information into the hands of farm workers.

Commissioner Dhillon: Thank you. That's very helpful.

The next question is for Mr. Taylor. Mr. Taylor, I was fascinated both in your written testimony and in your comments here today, about your focus on empathy and the importance that empathy plays in healthy workplaces and how it's even more important now, given what our country has gone through in recent years. I'd like you to expand on that thought of empathy and what it is the EEOC can do to help build those healthy workplaces.

Mr. Taylor: Well, thank you. And it's pretty simple. We want people to sort of walk in another person's shoes or to look at and try to experience life through someone else's lens, the way they experience it. And we have found that the law and all of the regulations and rules, they sort of establish the floor, but there's so much more opportunity for employers to incorporate into their workplace cultures. And that's going to require that we not do just what the EEOC or Title VII requires in one of the various employment pieces of legislation, but in fact we've got to appeal to people's hearts and their minds. And what we found specifically as employers is that when you say to someone, "Yes, this is what the law requires. But imagine how this would impact your mother, your sister, your niece." These are the ways that we began to get people to act differently and not just comply with the law, but to try to treat each other the way they want someone that they're closely associated with to be treated.

So the more that the agency, the EEOC, can do to help reinforce not only legal compliance, because again, that's the floor, but to have us aspire to do more, and that is to treat each other with dignity, with respect and give people the opportunity to come to work without harassment, retaliation, discrimination, then the better we'll all be for it.

Commissioner Dhillon: Thank you. My time is up.

Chair Burrows: Well, thank you. We'll go on to Commissioner Sonderling.

Commissioner Sonderling: Thank you. And Mr. Taylor, I'm going to stay with you. So in your testimony, you highlight that a quarter of workers of color responded that they were laid off or furloughed from a job due to the pandemic. Some research demonstrates to emerge stronger from COVID-19, companies may need to re-skill and up-skill their workforce. So if the research is correct, employers in the post COVID world may increasingly need to do this, to be able to thrive. So I have two questions for you related to this, first while re-skilling and up-skilling opportunities are generally seen as positive, could they be fraught with legal risks for employers? And second, do employers in HR professionals have enough guidance, to ensure that they're complying with their legal obligations, when deciding who gets re-skilled and up-skilled and what can the EEOC to do to help?

Mr. Taylor: Well, so the answer is yes to the first, it is fraught with it. Employers and employees are really, and employers in particular, are struggling with how we make the decision to offer some groups re-skilling and up-skilling, and not others. We understand that groups that have been historically and systematically excluded from these opportunities are disproportionately being negatively impacted by the pandemic. At the same token, we have, especially with intersectionality issues if you can have a white male who's 60, who's significantly being impacted because of age discrimination and discrimination against older workers, and then you have younger Black males who, as we know, are significantly impacted by systemic racism in our workplace. So trying to figure out how to appropriately deploy re-skilling and up-skilling dollars and opportunities without running afoul the law is really complicated. So employers are yes, wanting to target underrepresented groups for development opportunities, but they also don't want to do so at the risk of people who may not be visibly members of an underrepresented group, but also are.

Has the EEOC provided us enough assistance? No, let's just tell you. Many employers are trying to provide the right level of assistance, and we just need guidance; guidance from you all about how to do this the right way. Because the last thing that we want to do is go about doing what we think is the right thing to do for employees, and to be compliant with the law, only to find that we're violating some other part of the law. And in fact, turning off employees who might want to consider working for our organization.

Commissioner Sonderling: Thank you. This is a very important issue, and I agree we should address it. My next question is for Mr. Hewitt. Mr. Hewitt, in your testimony, you discuss how the Lawyers' Committee has been at the forefront of advocacy related to equitable data collection practices. As we are all well aware when the EEOC attempted a new pay data collection in the past, it led to litigation.

So based on your testimony, that there is a need for more data, what specific data collection practices does the Lawyers' Committee recommend, and how do we assess its utility?

Mr. Hewitt: Sure. Well, look, I think that we don't want to get you mired into litigation, but I think it's important to push the envelope as much as possible. I think what we need is data about the different types of circumstances that workers are facing; information that's provided on a voluntary basis of course, not that they're required to share, but information about race and ethnicity obviously, their home situations, what kind of care they're providing, and also any health information that they're willing to provide. I think that gives you a broader picture of what workers are going through and how employers can step up to care for them and to provide for them generally.

Commissioner Sonderling: Okay. Thank you. And then with my remaining time, Ms. Ramirez, you discussed how businesses need to reconcile, bringing back workers and hiring new workers to comply with civil rights laws, what kind of guidance do you think will be helpful for businesses to ensure that they bring back and hire workers in accordance with their obligations, under the anti-discrimination laws? And what should it specifically address?

Ms. Ramirez: I think in particular, there's going to be a need to do broad outreach to people, to make sure that people have access to information about who is hiring and they have the opportunity to apply for those positions. It's going to be really important to do broad outreach, because there are people who, they don't have as much access to the information and they maybe are not considering themselves for some of those opportunities. So making sure that the employers are thinking about who partners can be, to help get the word out about the jobs they're hiring for and ensuring that when they're doing the hiring, I think to Ms. Goss Graves’s' point earlier, that they have to make sure that their biases are not getting in the way of making decisions about what it is that people can or cannot do.

People need to be able to speak for themselves and they need to be if they're applying for the position and they believe that they can do the job, then they should be taken into consideration just as seriously as any other applicants.

Commissioner Sonderling: Great. Thank you very much to this panel and I'm out of time.

Chair Burrows: I'm sorry. Commissioner Lucas.

Commissioner Lucas: Thank you. And I wish that we had twice as much time because there's just so many questions to ask. But for my second round, I'm going to start with Mr. Taylor. I'm curious about your thoughts on questions related to vaccine incentives, and what you're hearing from your stakeholders and what you would recommend in that space. So, do you recommend that employers be permitted to provide cash incentives as opposed to simply leave related incentives? And if so, couldn't the impact of a cash incentives, desperately influence workers depending on their salary or hourly rate resulting in different risks of coercion from such incentives, for the greatest potential for coercion effecting the lowest wage and therefore most vulnerable workers?

Mr. Taylor...: Let me start with, we absolutely believe that incentives for vaccination are important. However, it should not be limited to just cash. We're finding that employers are doing a number of things. Paid time off to obtain the vaccination. Paid transportation to vaccination facilities. On site vaccinations at no cost to the employee. Gift cards, which you could say is cash, but some form of remuneration afterwards to get a lunch, for example. We find that a lot of people experienced, particularly if on the second shot regimen that they don't feel well. So, providing people with gift cards to get home and then perhaps provide dinner for their families that evening, if in fact they're having a negative response to it. All sorts of swag. We’re also seeing that works well as well in the workplace. T-shirts and mugs and the like to employees go over well in terms of encouraging employees to become vaccinated. So, we absolutely believe that if ultimately cash is king and that works, that it's a good idea, but there are other opportunities to incentivize employees. And we think that we're seeing a lot of these other things work just as well, if not better than cash.

Commissioner Lucas: Playing off of one of these you've mentioned in terms of swag, and to the extent that that includes things like, I got vaccinated sticker or something encourages people to disclose their vaccination status. Do you have any concerns about that potentially resulting in inadvertent pressure to disclose a disability related medical information?

Mr. Taylor: Yeah, they're very much concerned about that specific type of swag and it came from a good place. Employers were like, I voted today. So, you wear your little button and that's to encourage other people to make them aware that today was voting day, and that you want to encourage employees to do it. However, you're absolutely right that it could put pressure on people to explain why they haven't been vaccinated thus requiring in some ways that they disclose underlying health conditions. So, we are not advocating doing that. Again, employers are strongly encouraging from the top. I'm the CEO and I tell my employees, I strongly encourage you to do it provided you can, do it safely and not violate your religious commitments. But other than that, all of the other ways, just amount to people who do it, we think works. But specifically calling out, I've been vaccinated, you should too, we think runs significant risk.

Commissioner Lucas: Thank you. My next set of questions is to Ms. Shierholz [Inaudible 02:15:31]. First of all, I just want to thank you for your focus on the working class in America. It's an important constituency to keep in mind, although it's easy for some of us to forget while we're adapting to our own COVID related work challenges if many of us have been privileged to telework. And I just think it's important to remember that the privilege to telework also provides the benefits of decreased exposure to COVID-19, and also the increased likelihood of job retention. So, thank you for reminding us that the large swath of the workforce, and that's the majority of the workforce is facing completely different challenges.

And related to that, I'm just interested in some of the costs of telework. Again, I think telework can be a wonderful thing for many people, but I am concerned about how it may impose perhaps externalities. So, you might call a small privileged set of workers able to telework, the Zoom social class. Is this group of people taking advantage of lower wage workers of color who have served at disparately higher rate in person jobs for essential retail and food jobs to caregiving service jobs? Put it another way, do you agree that the continued lockdowns create structural inequity, largely white privilege, white collar workers, externalizing the societal cost of lockdown, but working class essential workers and service workers who are more likely to be workers of color and women, placing those individuals at higher risk of contracting the virus to enable privileged workers to stay and work from home?

Ms. Shierholz: That’s a really interesting question and I think that the important thing to keep in mind is that it is the virus that is causing the big upheaval. It is the virus that's the big disruption to the labor market. It's the virus that is creating the economic conditions that's making these inequities so exacerbated. And so if we just got rid of any lockdown provisions in a way that actually impeded our progress on controlling the virus, that would exacerbate all the inequalities that we've talked about here today. And so to the extent that those, and the extent that those lockdown measures, other measures to get the virus under control are really doing that, they're doing their job, that means that we are ameliorating this big thing that has so contributed to these massive inequalities. So, I would look at it from that perspective. Like it's the virus that has created this situation that we're in right now, the particular situation that we're in right now. So, the provisions that we can put in place to get control of that, those things will help reduce those inequalities.

Commissioner Lucas: Thank you. I think I'm out of time.

Chair Burrows: Thank you. I have so many questions, but I'm going to say thank you to our panel and I am going to defer questioning. I had so many things that I wanted to ask you about, but in order that our staff can have lunch and that we can resume at 1:15, I'm going to thank you and we will conclude this panel. So, we will be resuming at 1:15 later today. If you are connected and wish to see the second half please stay tuned.

(silence).

Chair Burrows: The hearing will now resume. Welcome back to my fellow commissioners, our field staff across the country and members of the public who are joining us today. And a very special welcome to the distinguished panel of speakers who will be participating in today's hearing for sharing your expertise with us today. With that, I'm pleased to introduce the speakers on our second panel in the order that they will be testifying.

 

First, Eric Henson is a citizen of the Chickasaw Nation, and a research fellow with the Harvard Project on American-Indian Economic Development, where he specializes in Native American economic development and governance. He's also an executive vice president with Compass Lexecon, an economics consulting firms.

Julie Hocker is a national labor and health policy expert and consultant. She served as US Commissioner on Disabilities from 2018 to 2021. During the pandemic Ms. Hocker oversaw deployment of $85 million in CARES Act funds to more than 280 nonprofits nationwide, to provide employment support, food, personal protective equipment, transportation, and community referrals.

Brian East is a senior attorney with Disability Rights Texas, and has handled numerous disability discrimination and disability rights cases in state and federal courts. He has also written and lectured extensively on ADA issues, including the impact of COVID-19 on disability rights.

Michael Eastman is the Senior Vice President for Policy and Assistant General Counsel at the Center for Workplace Compliance, a national employer association. He's also a partner with the DC based law firm, NT Lakis, where he advises employers on a broad range of employment related matters in public policy advocacy.

Next, we have Laurie McCann, a senior attorney with the AARP Foundation where her principal responsibilities include litigation and amicus curiae participation on a broad range of age discrimination and other employment issues. Ms. McCann is a noted speaker on the aging workforce, and she has written and lectured on age discrimination, downsizing, and employee benefits issues.

Amrith Kaur is the legal director of the Sikh Coalition where she supervises high impact litigation and manages initiatives to protect the civil rights of all Americans against hate crimes, bullying, racial profiling, and workplace discrimination. Ms. Kaur is a recognized expert on issues of race and religious rights, and works with public and private sector organizations to create anti-bias and cultural competence trainings.

Thank you all again for being here today. As a reminder, you will each have five minutes for your remarks. Our IT folks will be keeping special track of time, and will use the chat function to let you know when your time is drawing to a close. We will begin with an introductory statement from Mr. Henson.

Eric Henson: Thank you all. Can you hear me okay?

Chair Burrows: Yes. You sound good.

Eric Henson: Pleasure to be here. Thank you so much. So, I've been asked to talk a little bit about Native Americans today and the impacts of the pandemic on the tribal governments. And I listened in some this morning, and I think my discussion will be a little bit different from some of what we've heard, because unlike some of the other groups that we've been focusing on, the tribal governments themselves are governments. And so in talking about employment impacts both on individual employees, but also the governmental level. And in a lot of cases, the tribes are those who are providing the employment. So, I think it's a little bit of a different construct than some of the discussion we had this morning, but I think it's interesting and will contribute to our conversation today. One thing I think that is important to keep in mind when you talk about civil rights and the tribes. You really need to start with the history of interactions between what became the United States federal government, and the tribes themselves.

There's this long history of persecution, outright warfare, subjugation, deprivation, poverty. And so, the state that tribes find themselves in can't really be divorced from that history. What we're sitting on today is about 50 years of what we sometimes refer to as the Native American Renaissance. We've been on a bit of an upswing for about five decades, and there's some historical reasons for that. A lot of it surely, turning on the federal government recasting its involvement with the tribes, to engage with them on more of a government to government basis, which allowed tribes some access to resources and prioritization to start making their own decisions, having a seat at the table in terms of their own economic development.

How that's played out, intersects with our discussion today because, unlike most governments in the world, tribal governments are largely unable to fund themselves by levying and collecting taxes. So you have 574 tribes in the country right now, and federally recognized Indian tribes within the United States. And those tribes find themselves without the ability to generate governmental revenues by taxation.

So to a large degree, they've turned to enterprise development, which casts them in the role of employer, much more than many governments around the world. There are certain exceptions, but the United States federal government has said, the Postal Service It's a business and generates revenues, but the U.S. government doesn't depend on the Postal Service obviously to fund itself to any degree whatsoever.

Tribes however, largely fund their discretionary revenues, by enterprise development and employment. And one of the important things that I think intersects with our discussion today is how are our estimates are that tribal governmental and enterprise development contribute $50 billion per year in worker income, but importantly, 80% of that income goes to non-tribal citizens.

So we have tribal governments employing large numbers of non-tribal citizens, and often becoming the engine of economic growth in their regions, particularly in rural settings, where you've had a population decline as people migrate towards cities. Well these tribes, as they've developed and really taken on the mantle of economic engine in these areas, have become the employer of choice. They're often the largest employer in the region, sometimes in the state.

So everything we've been talking about today intersects with tribal employment as employers, and also obviously impacts Indian people who work for their own tribal government or for other tribal governments. One of the things that happened about 13 months ago, of course, as we all know, is that many, many workplaces shut down or put everyone on furlough. Tribal governments in particular made great strides in attempting to merely furlough their workers, so that their employees were not suddenly left with a lack of health care access, in the middle of a pandemic.

So my own tribe was able to dip into a rainy-day fund and maintain employee wages for a certain amount of time, even though the tribal businesses were closed down. I think this walks right into the civil rights question before us, because so much of the neglect the federal government has foisted upon the tribes over the many decades, made tribal communities and tribal people, particularly suspect to the negative health outcomes of the pandemic.

You can't wash your hands if you don't have running water, you can't isolate sick people if you have inadequate housing, you can't protect your elders if you're far from medical facilities, et cetera, et cetera.

I think I'm about out of time, so I'll stop there. Looking forward to the Q and A and discussion later. Thank you very much.

Chair Burrows: Thank you, and I appreciate that. I would go now to Ms. Hocker. Welcome.

Julie Hocker: Thank you so much and good afternoon Madam Chair, Commissioners and members of the public. As the U.S. Commissioner on Disabilities at HHS from 2018 until this past January, I saw firsthand the devastating impact the COVID-19 pandemic had on individuals with disabilities. I am honored to discuss what I saw and what needs to be done.

In 1990, when the Americans with Disabilities Act was signed into law, we as a nation had hoped that it would have a similar impact on labor force participation, on employment and pay equity for individuals with disabilities as the Civil Rights Act of 1964 had for Black Americans and women. It has not.

Before the pandemic, the labor force participation rate for Americans with disabilities was 21%. For Black and African Americans, it was 62%. For the general population, it was 63%. The COVID-19 pandemic has not only highlighted these prevailing disparities, but further deepened the divide.

In fact, while the thriving economy of 2019 led to modest improvements in the unemployment rate for Americans with disabilities, those gains were not only erased by the pandemic, but further eroded. One in five Americans with disabilities lost their jobs in the first few months of 2020. Compare this to one in seven for the general population.

Why were workers with disabilities disproportionately impacted? Answering this question in full requires a deep dive into several areas, including reasonable accommodations, discrimination, voluntary and involuntary compliance and long held low expectation for people with disabilities. More than I can address today. I hope you will review my written testimony I submitted for today.

Today I will focus on students, workers in sheltered workshops and those wanting to return to work. Each year, U.S. graduates three quarters of a million students with disabilities, all of whom have the right to an effective and executed transition plan with job readiness and support to competitive integrated employment.

As Commissioner on Disabilities, I continually heard about the denial of education and educational supports and services. We're left to wonder how many truly had meaningful post-secondary education transition. Provided the still prevailing absence of such support from teachers in schools, this commission should encourage employers to take steps which are creating diversity, equity and inclusion efforts at their companies, to take into consideration this loss of education and training.

It is also worth discussing the 100,000 individuals working in sheltered workshops who also have the right to seek competitive, integrated employment with the counseling and support they need. It is not clear how many of the 1,300 workshops provided such services during the pandemic.

I encourage this Commission to take all action within its authority to ensure compliance so that the promise of the ADA becomes a reality for those Americans who continue to work for sub-minimum wages.

As we look ahead to the post-pandemic economy, we must consider that the past is not encouraging for those hoping to return to work. During the great recession of 2007 to 2009, the employment rate for people with disabilities continued to fall, even after economic recovery began. We can and should expect a similarly disproportionately negative impact during this recovery as well.

I urge the Commission to partner with other federal agencies to take bold steps towards moving persons with disabilities into the workforce. While the causes of our unmatched and perpetual unemployment undoubtedly stand beyond the pandemic's impact, let this year and this be the tipping point for us to declare such exclusion is unacceptable.

In addition to tackling the root causes, updated guidance for employers is desperately needed, and guidance should address employers’ responsibilities concerning reasonable accommodation, anti-discrimination efforts, and the broader changes that we anticipate regarding hiring, training, retaining and promoting workers and a greater remote working flexibility.

Madam Chair and Commissioners, the pursuit of our individual goals is the foundation of our freedom. There is dignity in hard work, in being a member of a team and receiving that paycheck. But for far too many Americans with disabilities, far too many barriers remain. I applaud and thank the EEOC for having today's hearing and for inviting me to testify. Including workers with disabilities in the discussion is, however, no longer enough, no group faces greater barriers to employment in our nation today. We cannot simply be a part of the conversation. We must be at the center of it. I thank you for your time. And I look forward to answering your questions.

Chair Burrows: Thank you, Ms. Hocker. Mr. East?

Brian East: Thank you, Chair Burrows. Thank you to the Commission. I'm an attorney at Disability Rights Texas, and we're the protection advocacy organization for the state of Texas. We've heard already about studies and the labor force participation problems, historically and during the pandemic, for people with disabilities.

In my written testimony, I tried to do something a little different, which is describe the kinds of cases that we expected to see because of the pandemic, the kinds of disability discrimination cases we expected to see, the kinds of cases we did see, and the kinds of cases that we are seeing in surveying lawsuits filed around the country.

All those sources yield a fairly uniform picture. And I describe generally, and then in some specifics in my written material, what those are. But the most common complaint that we expected to see, that we did see, and that we see in litigation filed, is the failure to provide a teleworking accommodation, often after a period in which teleworking was permitted or even required for all, and even if it was successful.

So we just see a lot of cases like that, and they are in many different industries, many different types of jobs, obviously not all jobs lend themselves to teleworking, but it is a big sector of the economy now, and we see a lot of those cases.

We also see a lot of cases involving other kinds of failure to accommodate. Those can include a failure to provide job restructuring, failure to provide safety protocols and issues regarding leave. And the issues regarding leave are varied, but they're often both employers failing to provide a period of unpaid leave and employers demanding unpaid leave, instead of another accommodation that would have allowed the individual to keep working and keep income.

We expected that most of the cases we would see involve people who have a disability that is a risk factor for a serious case of COVID-19. And in fact, that's what we do see. There are other reasons why people seek accommodations, but the most common one we see is someone who has one of these conditions recognized by the CDC, WHO and others.

So in addition to summarizing what we're seeing in our own cases, and in cases around the country, we did try to describe the pluses and minuses of the EEOC's response to the pandemic. And, as has already been said by several people, one strong plus is the guidance document that the commission put out. There are three in particular, the what you should know, the pandemic guidance, and then the YouTube webinar. Those were all focused on real-world questions, gave good information, came out quite early and as has been mentioned, have been updated. So in general, that's a very helpful thing.

They're also in alternative formats to some extent. There was a YouTube video that had captioning, there was a transcription of that video, et cetera. But there were some problems, even with the guidance. In our view, the reference to direct threat was a little bit confusing and left out the requirements that employers consider whether reasonable accommodation will reduce the threat level down to an acceptable level.

Also, the most recent iteration of the guidance on teleworking was worded in such a way or framed in such a way as to not strongly support teleworking accommodation. That we've seen, and as we've heard today, it is an important one. It was before the pandemic, all the more so now. And the failure to provide really strong and clear guidance on that, is a negative.

And then finally, it's a negative that the EEOC has not really spoken on whether COVID-19 is itself a disability, if it ever can be, if it's regarded as a disability. We all, I think, expected to see something. We haven't, and we don't know whether it is.

Most of the cases we see, do not depend on that question because there is an underlying disability of a different type. Type 2 diabetes or asthma or heart condition, et cetera. But there are a number of cases in which the employer is discriminating because of someone having COVID-19. And we need to know whether that is protected. In our own view it is sketched out in the written comments, we believe it is a disability.

So, that's the information I would choose to talk about here. Happy to answer questions and thanks again for inviting me.

Chair Burrows: Thank you for joining us. Mr. Eastman, welcome back to the Commission.

Michael Eastman: Hi, good afternoon. Thank you for the opportunity to be here today, to discuss the challenges employers have faced and continue to face during the pandemic. These challenges, as we've heard already today, are diverse and complex.

I believe the Commission has a role to play in helping employers as they seek to maintain operations and prepare for the next phase of the pandemic. My goal today is to identify specifically a few issues that the Commission could address right now to provide guidance to employers.

The theme behind these suggestions is this: Employers are working today, right now, on what a responsible return to work policy looks like; What considerations should they be mindful of now, before decisions are made, to comply with the law and lead to better outcomes for employers and employees. That's the guidance employers could use today.

So first, I'd like to start with the issue of vaccine mandates, which I believe is something that the Commission could say a little bit more about. Today, it's my experience that most employers do not have a mandatory vaccine policy, but it is something that they are actively considering and whether to adopt it for their entire workforce or a portion of the workforce. The Commission's current guidance does not squarely address that question.

We believe the Commission should clarify its existing guidance, to state that employers may implement a mandatory vaccine policy, assuming that the policy appropriately addresses requests for reasonable accommodations related to disability or religious practices.

Having said that, it needs to be acknowledged that a mandatory vaccine policy exposes employers to some legal risks. Some of that risk is outside of the Commission's jurisdiction, for example, in the wage and hour space. But as with any employment policy, implementation of a mandatory vaccine policy could have a disparate impact on a protected group. If the Commission were faced with such a claim, how would it analyze whether the employer's policy was job-related and consistent with business necessity?

The Commission's guidance here would be helpful to employers seeking to appropriately tailor their employment policies and would help minimize the risk of a Title VII violation. Analogous guidance with respect to the Age Discrimination in Employment Act would also be helpful.

We've talked some today about vaccine incentives. Employers are looking at ways to encourage people to be vaccinated, as vaccine rates may level off in the future. This question may become even more important as we struggle to get through this and beyond this pandemic.

So can employers offer a financial incentive to get vaccinated? Current guidance does not address this question. Most of the discussion of this issue is hung up on the question of whether employers may provide financial incentives for employee participation in corporate wellness plans. Now, the wellness plan question is important, but it's unfortunately become contentious. I think that the commission could address many of the employer concerns related to incentives for vaccines, without wading too deep into the wellness debate. That's where I recommend the Commission go.

Now, as I detail in my written testimony, I think the risk of violating the ADA by providing a vaccine incentive is low for most employers. After all, the vaccine is not a medical examination or inquiry under the ADA. And if there's no medical examination or inquiry, then the wellness analysis is irrelevant.

The wellness question could come into play if an employer administers the vaccine itself and asks pre-screening questions that are medical inquiries. However, the EEOC could still help minimize [inaudible 03:04:19], suggest how employers could minimize the risk of a violation, such as by keeping incentives small and ensuring that alternative means exist to earn an incentive for those who are not able to be vaccinated.

Finally, just to mention one more issue today, we've talked a little bit about return to work and whether in-person work can be an essential function of the job. I think clearly this is an issue many employers are struggling with today. We've learned a lot about telecommuting over the last year. I think many employers and many jobs will continue to explore telecommuting as an important workplace flexibility option.

However, at the end of the day, we know that there are many employers that will still have many jobs for which they do believe in-person work is an essential function of the job, and for which telecommuting or remote work is just inconsistent.

Now, the Commission's guidance addresses this question in its current guidance, by noting that if an employer has suspended an essential function of the job during the pandemic, that doesn't mean it can't reinstate the essential functions later. This is something employers are grappling with. We get this question all the time. And I think even though it's something that's in the Commission's guidance today, it's something that maybe we could use a little more discussion of.

I see I'm out of time, I've also teed up some issues for discussion in the question and answer about emerging questions, emerging issues. I look forward to continued dialogue with all of you today, and in the future.

Chair Burrows: Thank you, Mr. Eastman. Ms. McCann?

Laurie McCann: Good afternoon. On behalf of our nearly 38 million members and all workers age 40 and older, thank you for organizing today's hearing to discuss the workplace civil rights implications of the COVID-19 pandemic.

Both the pandemic, which places older workers at greater risk of more serious illness and the accompanying recession, have dealt significant blows to the job prospects and future retirement security of older workers.

For the first time since 1973, workers 55 and older, face persistently higher unemployment rates than workers aged 35 to 54. And in January, almost half of job seekers aged 55 and older were long-term unemployed. We are also seeing an alarming trend toward earlier retirement. Older workers have exited the labor force at twice the rate they did during the great recession of 2007 to 2009, which portends drastic downward economic mobility in retirement.

The pandemic has exacerbated age discrimination. As employers begin to make plans to bring employees back to the workplace, the fact that older workers are more susceptible to serious illness, may lead employers to try to limit their legal liability and avoid increased healthcare costs by terminating older employees and refusing to hire older applicants.

In short, the pandemic has laid bare the need for Congress to strengthen the Age Discrimination in Employment Act and for the EEOC to similarly revitalize the act’s substantive regulations.

In recent years, the Supreme Court and other federal courts, have weakened the ADEA's protection. Well, some misguided court decisions and statutory shortcomings can only be fixed by Congress. There is much the EEOC can do to update and strengthen substantive policies and to invigorate its ADEA enforcement activities.

For one, to address the problem of long-term unemployment that plagues older workers, the agency should update its regulations to address the changing nature of recruiting and hiring practices. Too many employers persist in using age-based qualifications in their job postings or use age-related inquiries and screening procedures in their job application process, especially online.

The EEOC’s regulations contain weak and internally contradictory language that does little to deter improper employer recruiting and hiring practices. The regulations expressly disclaim that even asking for an applicant's date of birth constitutes unlawful behaviors, stating only that such requests will be closely scrutinized.

Moreover, compliance with the ADEA has fallen behind the growing influence of social media platforms and artificial intelligence in recruiting and hiring. In light of this, 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. Significantly, the state of Connecticut, recently amended their statue with the support of AARP to do just this. And finally, to prohibit selection criteria or algorithms that have the effect of screening out older applicants. AARP also urges the commission to direct its resources to address case law that is contrary to the ADEA's text and purposes, as well as the EEOC regulations.

For example, some courts have ruled that job applicants may not bring disparate impact claims to challenge age discrimination in hiring. Other courts have ruled that compensatory and punitive damages are not available for ADEA retaliation claims, despite the EEOCs long-standing guidance that clearly states the opposite.

There have also been decisions in which courts have misconstrued the but for standard annunciated in Gross versus FBL Financial Services, and others that have placed unwarranted limits on cases brought by public employees.

To address these trends, AARP urges the EEOC to add a definition of individuals to the ADEA’s regulation, that includes both applicants and employees. Older workers also need the EEOC to defend its own disparate impact, reasonable factor other than age regulation, which would be extremely valuable to challenges to pandemic-related reductions in force and also hiring violations.

Finally, the AARP encourages the EEOC to continue to emphasize as it recently did in the Pelcha case before the Sixth Circuit, that despite the Gross decision, but for does not mean sole cause, and that cases involving multiple motives and intersectional discrimination are cognizable under the ADEA.

Thank you for the opportunity to testify. We look forward to working with the Commission to improve the enforcement of the ADEA in light of the devastating impact of the pandemic on older workers.

Chair Burrows: Thank you so much. Ms. Kaur.

Amrith Kaur: Good afternoon. Thank you all for the opportunity to participate in today's discussion. I'm Amrith Kaur, I'm the National Legal Director for the Sikh Coalition, which is the nation's largest Sikh civil rights organization, and I represent a number of Sikh healthcare workers who have been impacted by the COVID-19 pandemic in the workplace.

As you know, Title VII prohibits employers from refusing to accommodate employees’ sincerely held religious beliefs or practices, unless an accommodation would pose an undue hardship upon the employer. This includes accommodating observant Sikhs, who maintain uncut hair, including facial hair, as articles of faith.

An emerging challenge caused by the COVID-19 pandemic has been the interpretation of regulations issued by the Centers for Disease Control and Prevention, and the Occupational Safety and Health Administration, and the wearing of certain types of personal protective equipment, such as N95 respirators by people with beards. Specifically, both the CDC and OSHA regulations require certain employees to be fitted for N95 prior to wearing them in the workplace.

However, neither agency’s regulations allow individuals to be fit tested if they have any amount of facial hair. Now it's important to note that there are many reasons why individuals may be unable to pass such a fit test, including having a more narrow face shape, which is often the issue with women.

However, it is only individuals with facial hair who are not allowed to sit for a fit test whatsoever, regardless of whether they may be able to form a sufficiently protective seal with the N95. The requirement to shave has had a detrimentally disparate impact on Sikh, Jewish, Muslim, and other minority faith healthcare workers, students, paramedics, and first responders who maintain beards as articles of faith.

They've been forced to make the unconscionable choice between sacrificing their faith by shaving or risking termination. The shaving requirement has also had an adverse impact on Black and Hispanic workers, who most commonly have the medical condition pseudofolliculitis barbae, which causes a rash after shaving, thereby requiring them to maintain some level of facial hair.

Despite the availability of CDC and OSHA-approved alternatives to the N95, many frontline workers are being denied accommodation requests by their employers. The discriminatory impact of these policies is even more concerning, given the CDC recent declaration that racism is a serious public health crisis.

The issue of respirator fit tests and employers’ general unwillingness to provide appropriate PPE for religious and racial minorities, is another example of the systemic bias within our workplaces. Not only do these policies harm minority employees, but they also harm the general public as they limit the access of talented minorities from entering or remaining within these workplaces.

Since the onset of the COVID-19 pandemic, we've worked with over 20 Sikh employees and provided guidance to countless others regarding the workplace rights and the wearing of PPE. And the majority of them were frontline workers who had not previously encountered policies that required them to shave. Employers routinely took at face value the CDC and OSHA regulations proclaiming those with facial hair could not be fitted for a N95 and failed to consider whether the employees could be accommodated and remain safely working while maintaining their religious articles of faith.

In each case, we challenged the employers to interpret the CDC and OSHA regulations in conjunction with constitutional and statutory protections, which required the employers to provide reasonable accommodations, absent undue hardship. In some cases they did act quickly to accommodate. However, that's not always the case. In fact, a number of observant Sikh are categorically denied employment by certain employers such as ambulance services or paramedics providers, because those employers refuse to acknowledge their legal obligations and provide alternatives.

In an effort to bring clarity to this issue, we've engaged with the U.S. Department of Health and Human Services of which OSHA is a part, and the U.S. Department of Labor of which... I'm sorry, which CDC is a part, and the U.S. Department of Labor of which OSHA is a part, to reiterate that Sikhs are able to wear PPE safely without shaving their beards.

We need them to clarify their regulations and pursuant to the legal standards under Title VII, we need them to make clear that reasonable alternatives should be provided for bearded employees. We brought certain cases to OSHA and similar cases arise frequently. Unfortunately, our experience indicates that some employers have used the pandemic as an opportunity to create more stringent workplace policies that fail to provide religious or other accommodations whatsoever, as a way to reduce their expenditures.

Due to the ongoing nature of this pandemic, many employers feel they have government sanctioned authority to create employment policies that fail to take religious-based employee protections into account. It's imperative that the EEOC protect the rights of these employees that are requesting accommodations for alternative forms of PPE. And that these employers have clear explicit guidance to better understand their legal obligations under Title VII, particularly because employers are interpreting CDC and OSHA workplace regulations to supersede EEO law. Clarity would benefit many faith, disability, racial and ethnic communities.

Thank you for your time and your consideration.

Chair Burrows: Thank you, Ms. Kaur.

We will now proceed with our first round of questions from the members of the Commission to the panelists. Each commissioner will have five minutes for questions and we will begin with Vice-Chair Samuels.

Vice Chair Samuels: Thank you so much, Madam Chair, and thank you so much to this distinguished panel of witnesses for your insights, your advice to us. It will be enormously helpful as we continue to think through how EEOC can best add value in addressing the effects of this awful pandemic. I have many more questions than I will be able to get to during the time I have allotted, but I'd like to start with just trying to develop a little bit better understanding about employers’ reaction to continued telework as reasonable accommodation. I preface it just by saying that I think many of us did not think that telework would be possible a year ago. One of the potentially silver linings of the pandemic is having learned how we can function better in a remote environment. I think one question is whether employers have gained some greater understanding of the ways in which telework can be used and of the extent to which they can be more receptive to those kinds of accommodations.

I guess I'd start with Mr. East to just ask whether... I know that you mentioned that there have been barriers to telework as a reasonable accommodation, but I wonder if you are seeing an increased receptivity as we internalize the lessons learned from the pandemic.

Mr. East: Thank you. We have seen some information suggesting an increased receptivity, but because we represent individuals who are having problems, we mostly hear about the problems and there are a lot of problems. So, I do think there are employers that have a new understanding or have gone through this social experiment with the rest of us and realized things they didn't realize before. But the frustrating thing for us is that in many circumstances, our clients would ask their employer who says, "You can't telework. You have to come back." And they would ask, "Tell me what the essential functions are that I cannot do remotely because maybe there is a workaround that we could come up with." And the answer was just, "You have to come back." No engagement on the issue. So I don't doubt that there are employers that are realizing this. We've heard testimony on an expectation from the employer side, that this will continue, this move to remote working will continue, but I do hear more about the other side.

Vice Chair Samuels: Well, thank you. I guess I’ll turn to Mr. Eastman, and I know that you expressed a sentiment that some employers are struggling with the idea of telework and the context in which more people are returning to work. Are there particular types of employers or particular job categories where employers are having a particularly difficult time understanding how telework could function?

Mr. Eastman: No, and I wouldn't quite frame it that way. I think employers have learned tremendously about how telework can function positively, right? We've all learned that over the last year. The question that I tried to raise is with respect to some employers who believe that there are jobs much better done at the workplace in person. Those employers, they want to be sure they accurately go through this analysis of what the essential function of the job is. Is it truly essential? And how do they show that? How do they think about it? That's the kind of guidance that I think would be helpful.

Vice Chair Samuels: Do you perceive that there are some industries in which that is more the case than others?

Mr. Eastman: It's funny. It's so hard to generalize because sometimes it's counterintuitive. There are some companies which are extremely advanced in technology that want people back in the office, right? So it's very hard for me to generalize on that.

Vice Chair Samuels: I appreciate that. I guess I'd also ask Ms. Hocker, in your written testimony, you made the point that some of the technologies that employers are using are inaccessible for people with disabilities, which obviously limits the extent to which they can benefit from telework. Are there technological platforms that can in fact accommodate the needs of people with vision impairments or inability to use their hands or other kinds of barriers that people with disabilities face? If so, how can we make employers aware of those?

Ms. Hocker: Yeah. So, thank you so much for the question. So I'll say this as a person with a significant disability myself, as someone who led a federal agency with many people with a variety of disabilities who all went to full-time telework, definitely. And then, of course, as Commissioner, I saw this from multiple angles. I'll say that when we all went home last March, we gave all of ourselves a lot of grace to figure this out, but you'll see that today we're interacting and have an ASL interpreter with us today. A year ago, this was almost impossible to easily make that person on our screen and to pin them to our screen so that deaf individuals could be a part of the conversation. I'll say that technology is catching up, but a lot of these platforms, unfortunately, really they weren't being used to be to the extent that we're obviously using now. And so, individuals couldn't have their ASL interpreter pinned if they need them.

If they are blind, it was typical for their screen reader to interact with a lot of the software. Or for example, if they had immobility and they were using speech to type, it was difficult for them to work through all of the commands on the software. We're seeing those issues being resolved, but a lot of people with disabilities, they have had new opportunities arise in the workplace in the sense of being on an equal playing field with their colleagues. But others are facing consequences of being at home for a prolonged amount of time, whether that has to do with a psychiatric disability, whether that has to do with the support that they need in person to complete their essential job function or whether their essential job function has needed to change. It's a complex situation that I would say remains on an individualized basis. It's important for our employers to continue to have insight into that and to receive guidance on the best way to make sure that as we consider a hybrid environment, whether it be remote or in-person, that we think about reasonable accommodations in both settings and across them in the future.

Chair Burrows: Thank you. So we're about two minutes over. I'll go to Commissioner Dhillon. Thank you.

Commissioner Dhillon: Thank you. I'd like to pick up, Ms. Hocker, with the question that Vice Chair Samuels just posed to you. You talked about during the telework environment during the pandemic, but now as employers are starting to move towards reopening their workplaces and bringing these teleworking employees back into the physical workplace, do you see any specific issues arising concerning the disability community that you think the EEOC ought to be thinking about?

Ms. Hocker: Well, absolutely. I mean, we know from my written testimony and my testimony this afternoon that people with disabilities are disproportionately impacted by this pandemic. We had really, as a population, only begun to go back into our nation’s workforce prior to the pandemic, I think, to the strong economy of 2019. And so, I would say this: We want employers to understand that people with disabilities bring strength and talents to the workplace, like no other population. However, we may be reluctant. The data points to this, 20% of Americans with disabilities who aren't working want to work. That's a disheartening number. We want to see that increase.

And so, I would say, I was thinking about when hiring, bringing people back for workforce, let's not just think about parents that stepped away from the workforce in order to provide adequate childcare and oversight of “at home” learning. We also need to think about the students that are graduating from high school, who didn't receive the education and support to transition into early work experiences. We need to think about the individuals who have been in sheltered workshops, who want to go into competitive, integrated employment. We need to give those employers that opportunity to understand we shouldn't be giving it to disadvantage to people with disabilities simply because they, too, experienced this disproportionate negative impact as a result of the pandemic. So I would say that certainly is a place where guidance needs to be more specific and technical assistance would go a long way. I think, again, the conversation is around reasonable accommodations, both in-person and remote to be strengthened to reflect the new hybrid environment that we foresee going forward.

Commissioner Dhillon: That's helpful. I'd like to stay with you for another question. In your testimony, I was really interested in how you talked about how remote and distance learning eliminated or greatly decreased the number of hands-on training support and experimental work experiences for students with disabilities. I confess, I hadn't really thought about it in the way that you put it. And so, it was very thought provoking what you put in your written testimony. Now that we've had some distance, you've had an opportunity to reflect on what happened, looking back, is there an approach that might have worked better than remote or distance learning for people with disabilities?

Ms. Hocker: Well, thank you for highlighting this issue. I think that our discussion around students in special education around the United States and how they have been truly more impacted than almost any other student group, it is a broader conversation that we'll have today. But again, like I said, three quarters of a million students graduate from Special Ed or complete special education and age out every single year.

What we know is that under the IDEA reiterated and strengthened under the Workforce Innovation Opportunity Act of 2014, they guaranteed the right to education, training, community support and experiences and early work experiences as part of their successful transition to post-secondary life in their communities. It was guaranteed those rights. Those rights have been upheld by the Supreme Court. And so, I would say this, I think we need to have an honest conversation in the country around how we could have gone through this better to ensure that students with disabilities weren't simply tossed aside, that they weren't, "Oh, we can't go into the community and teach you how to get on the bus and get to work. We can't support you in that early work experience. So I guess you'll just age out of special education." We can do better than that.

I think you'll see in my testimony that we need to work with employers who would otherwise be excited to employ young workers towards developing skills. So this is a great group of students. They're eager to work. They're hard workers. They're resilient workers who have many talents. How can you develop programs in the private sector to support them working with vocational rehab, working with nonprofits, to support them and enter the workforce that they can realize their goals and their dreams as well? It's a very complex issue across education and employment, but that population should not be forgotten. It certainly hadn't been forgotten in the legislation in the civil rights law of the United States.

Commissioner Dhillon: Well, thank you. Ms. Hocker, I think that it's very thought provoking and I'm glad that you've highlighted this issue. I think my time is close to expiring, so I will turn it back to the Chair.

Chair Burrows: Commissioner Sonderling.

Commissioner Sonderling: Thank you. I'm going to start out with Mr. Eastman. I want to clarify a few points about returning to work and telework. I know in your opening statement, you discussed it, and it's a very hot topic that's affecting a lot of people. So if we could just run through really quick. Before an employee who worked remotely during COVID-19 and does not have a disability, the purpose of the ADA, the employer may require that employee to return to the workplace without any further analysis. Is that correct?

Mr. Eastman: Under the ADA, that's correct. It's a business decision.

Commissioner Sonderling: Okay. Now, if an employee who has a disability and has worked remotely, if that employee now requests a disability-related accommodation to work remotely, does that employer need to automatically approve this request?

Mr. Eastman: No, the ADA establishes a framework to evaluate that request.

Commissioner Sonderling: Okay. So the EEOC guidance states that if an employer temporarily excused an essential function of a particular job, like working in-person, then the employer is also free to re-establish the essential function. So an employer who's wrestling with the question of whether in-person work is an essential function of the job, that seems to be the question that is going to face employers. So, what are the real-world consequences of that and what can the EEOC do to help?

Mr. Eastman: Right. So first, the threshold question here or the starting point is that employers have the responsibility to develop these essential functions of the job, right? And so, it's on employers to get this right at the beginning. It doesn't mean essential functions can’t change. We have learned a lot about remote working and maybe some employers want to change the essential functions of some of their jobs. But if the EEEOC can help provide guidance so employers can get this right so that they can carefully articulate the essential functions of the job and why in-person work is required, then that will prevent a lot of litigation, confusion and unnecessary disruption.

Commissioner Sonderling: You talked about at the end of your opening statement about the new and novel issues and there are just so many of them. Where does this rank with, as far as, what you think employers will face when people are vaccinated and people return to work or are going to be required to return to work?

Mr. Eastman: The question of in-person work?

Commissioner Sonderling: Mm-hmm (affirmative).

Mr. Eastman: Yeah, I think it's-

Commissioner Sonderling: ... an essential function. Yeah.

Mr. Eastman: Yeah, I think it's fairly high right now, for sure, because look, this is one of the handful of issues employers really need to get their hands around before they ask people to come back. Because as soon as they ask people to come back, they're going to be faced with a reasonable accommodation request. They need to have answers to that.

Commissioner Sonderling: So, I want to move on, but continuing on remote work, it brought a whole host of challenges. So earlier in the hearing, I asked a witness from the National Women's Law Center about her perspective about promising practices that employers are using to combat virtual harassment or other kind of misconduct. Two parts of the question, one, what are some of these new claims that employers are seeing? And then second, how are employers adapting to that and what are the best practices that the EEOC can help employers deal with these new claims?

Mr. Eastman: Right. So certainly, we've learned over the years that harassment can happen in a lot of different contexts, right? It can happen in the workplace. It can happen in a customer client's hallmark facility. It can happen on work travel, and now we know it can happen remotely. It's not really a new concept, but the examples of it are new and maybe novel. It's a best practice, of course, for employers to have a strong anti-harassment policy. In response to some of the new types of harassment we're seeing, employers, I think, are well-advised to modify their training, make sure employees know, to be aware of, for example, things that might be in their background in their remote call, things that people might find harassing. I mean, look, the employment handbook still applies, even though you're working from home and may be working out of your living room. And so, it's important that employers can communicate that to employees and that managers know how to manage it.

Commissioner Sonderling: Thank you very much. With my remaining time, I do want to ask Mr. Henson a question about the travel issues, where the EEOC does play a big role. So in your supplemental materials, you talk about that gaming is far from the only successful enterprise that tries to develop, manufacture tourism. Service sectors are also significant sources of revenue for a tribe. So, are there unique concerns to tribal employers as they prepare to welcome back employees to the workplace and what can the EEOC do to help those tribal communities with additional guidance?

Mr. Henson: All right. Thank you. Now, one thing that you gather from those materials is how there's a bit of sector concentration into the types of industries that were particularly hard hit, gaming, tourism, hotels, things that are largely in-person anyway, and involve large numbers of employees, plus large numbers of in-person visits from guests and customers. And so, my encouragement to the EEOC is to reach out and really engage the tribes in those conversations. As part of the federal government, there's a mandate for federal agencies to interact with the tribes on a government to government basis. I get a sense that we're really maybe in the cusp of a new era for the EEOC to reach out and proactively have those discussions with tribes and start learning some of those best practices that tribes themselves are implementing and maybe share that with other tribes, because there's no reason for hundreds of tribes similarly situated in their employment and their sector focus to recreate the wheel every single time. I think there might be a role for your Commission to play here.

Commissioner Sonderling: Thank you.

Chair Burrows: Commissioner Lucas.

Commissioner Lucas: Thank you. For my first question, I wanted to direct it to Ms. McCann. In my prior position, I spent a lot of time dealing with reductions in force and related separation programs. Obviously, there's been a lot of risks as a result of the pandemic. As you know, your testimony highlighted RIFs often end up disproportionally impacting older workers, and the ADEA and its regulations are specifically designed to remedy that by increasing transparency. So I'm sure you would agree that it's really important for our regulations and related guidance to be really clear in that area. And so, I was wondering, do you think that it'd be valuable for the EEOC to update and modernize its ADEA regulations to address more complex RIFs and restructurings?

Ms. McCann: Oh, absolutely. I think especially in light of the Hazen Paper decision, that suggests that the proxies for age are no longer viable claims, and yet that it... So it's very murky, but it's also very real that an employer conveys a RIF decision on something that is correlated with age with the intent of discriminating against older workers, and yet can often escape liability because of the fact that they don't base the RIF decision on age itself. So that's an area that I think additional clarification from the EEOC would be very helpful.

I also highlight in my testimony that the Older Workers Benefit Protection Act was intended to, as you say, create more transparency, where if an employer is asking for a waiver of ADEA rights and claims, they are required to provide some important disclosures that would allow the waiver decision to be knowing and voluntary. We're seeing a lot of confusion as to what is an eligibility factor for the reduction in force. A lot of employers and then courts are agreeing with them that an employer can just say the eligibility factor is if you were RIF’d you were eligible for severance, and that just can't be the case if the purpose of the waiver regulations on the OWBPA was to be knowing and voluntary. It clearly was meant to be. Why were the workers chosen? Was it performance? Was it redundancy that those positions were no longer needed? So, I really encourage clarification of what eligibility factors means in the context of reduction in force as well.

Commissioner Lucas: I completely agree with that. That was actually my second question for you, so you read my mind. Isn't it the case that in so many of these situations, the separation programs, since they're dealing with waivers, often don't actually turn into a written opinion, that those small number of written opinions we see in this area are just the tip of the iceberg of the number of RIFs that are dealing with this concern about what is or isn't an eligibility factor?

Ms. McCann: Absolutely. I actually do litigation for AARP. So many people say that they have no choice but to sign the waiver because they need the severance to pay tuition, to pay for groceries, to pay the mortgage. I agree with you that the reduction in force cases that we see are just the tip of the iceberg. Now, another troubling trend is employers wanting to avoid providing the disclosures altogether. So they're not requesting waivers, but they are requiring mandatory individual arbitration of claims, even in the context of reduction in force. So that's another reason why we're not even seeing the brunt of these reduction in force claims.

Commissioner Lucas: Interesting. Could you tell me more about that? So they're not requiring a waiver of rights, but they are requiring an arbitration. Are they providing a severance package?

Ms. McCann: They can and maybe they do, but they are trying to avoid providing the disclosures, which the whole purpose is to eyeball it, is it more older workers, or is it even across the way? And so, they're saying you don't have to waive your rights and claims, but you have to bring mandatory individual arbitration. And the court decisions are saying that the waiver of the jury trial, the waiver of the federal court claim is not a waiver of a substantive right. It's a procedural right, and the OWBPA wasn't required to protect those procedural rights, which AARP disagrees with. But unfortunately, to date, the courts have been siding with employers and that's what we're seeing. Although employers are getting what they asked for and a lot of attorneys are just bringing multiple individual arbitration. So when there is the capacity to do that, they're doing that. But I think in the most cases, it's supporting the claims.

Commissioner Lucas: Interesting. Thank you for highlighting that. I think I'm out of time.

Chair Burrows: Thank you, Commissioner Lucas. And so, I would just direct my first question to Mr. Henson. Thank you very much for bringing the broader perspective with respect to how tribal nations have been impacted by this COVID-19 pandemic. One of the issues you brought up earlier, which is very important to me, is how we can better engage with tribes and find out how we can best serve those populations. I will say it has been one thing that I've long wanted to work on, is the fact that while we do have 53 offices across the country, we do not have them in every state. And so, many of those states where we actually don't have a local office are also states that have several Native American tribes. And so, I recognize that that is an area where we should be focusing.

I recently finished a tribal consultation to see how we can better serve and work with tribal nations. One of the issues that came up was how can we possibly effectively do outreach in this time of pandemic when we know there are folks who live in Indian country who need our services, but we are not able to do the things that we have done in the past. I was happy to be able to visit several of our tribal employment rights offices, including Pine Ridge and Rosebud and Gila River and many others, but we are not able to do that and I'm sure the tribes would prefer that we don't do that in this pandemic times. So I would ask you for your thoughts on the best ways to get the word out. I recognize that there are limitations sometimes on online services, but we'd love to hear your thoughts on that.

Mr. Henson: Right. It might be that the greatest silver lining right now in our work from home, connect remotely is the ability to reach out to so many more places all at once. Some of our teaching at Harvard, even in a certain sense has been enhanced by the fact that we're able to bring in more people because you don't have to go there in person and use all of your time in a single one-on-one meeting, but you might be able to interface with many more at one time. I don't know internally how you're structured so much, but I wonder if there's the capacity to create a role or some person or small group of people could be primarily charged with this liaison function so that you can just stay in touch with the tribes on an ongoing basis.

I think too often, it's sort of this, we drop in once and then you don't hear from us for five or six years, whereas the tribes respond so much better to a continuing dialogue, continuing relationship building, maintaining those ties. You get so much further with those people that you feel like you know. And so, a little bit of continuity and maintaining and building that continuity might actually be enhanced by the ability to reach out remotely and interface with more than one individual office on tribal lands at a time.

Chair Burrows: Thank you. So we do have tribal liaisons within the EEOC, and we will look to that as well going forward. I wanted to go back to something that Mr. Eastman raised earlier with respect to employers beginning to bring more and more employees back to in-person work, where they find that that's necessary and appropriate. With respect to that, I was curious, we had some testimony earlier about timing of bringing folks back into the workplace. I think that Mr. Taylor from SHRM mentioned earlier that the time period he expects that a lot of employers will start to bring employees back to work will be around July and then a much larger number of employees would start to come back in, I believe, he said September. So I'm wondering if you could speak to that timing. Is that what you were also anticipating? This is for Mr. Eastman. I know we have two witnesses with very similar names.

Mr. Eastman: Yes. So it's very similar to what our expectations are, and this is anecdotally. We don't have a scientific survey on it, but I would say that we would expect... First of all, we have about 10 to 15% of our members with strong in-person presence throughout the pandemic. I would say another third or so would have people returning to work over the summer in large portions, then the majority, after Labor Day through the first of the year, probably, in the fourth quarter, with the rest coming sometime next year.

Chair Burrows: I believe I may be out of time. So I'm going to defer my questions to the next round, and I will go back to the Vice Chair for her additional questions.

Vice Chair Samuels: Thank you so much, Chair Burrows. I have a question Ms. Kaur, and that is about the points that you made about PPE and those who are unable to shave for disability-related or religious reasons. You said the requirement to shave has had a detrimentally disparate impact on many Sikh, Jewish, Muslim, and other minority faith healthcare workers, medical and dental students, paramedics, and other first responders. Tell me, how can we in the EEOC best educate employers about both the legal obligation to consider accommodations in these cases and the availability of alternative kinds of PPE that can be used in situations in which people do not shave?

Ms. Kaur: So I think many employers just don't fully appreciate the scope of religious freedom that we, as Americans, are afforded, and the challenges that minority faith must contend with in the workplace. I also think that they don't really consider all the implications of failing to address religious accommodation requests properly because they're just not faced with the clear statement that they must do so by some of our government agencies. So typically, employers, they may cite a compelling interest defense or something in providing a workable accommodation, or they may say that there's an undue hardship when in reality, because these workable accommodations exist and have been proven to work, the question that I always throw back at them is where is the hardship?

So to answer your question, I think that the best way to go about explaining to employers that these regulations don't in fact supersede EEO law to get them to comply with the status of constitutional and statutorily applicable law is to initially put out appropriate guidance. I know in January, the EEOC put out religious discrimination guidance. I think it was a great idea to update that guidance. I think that guidance needs probably some supportive document to highlight additional requirements and enforcement procedures that are put in place when these employers take advantage of the pandemic and these types of situations, to some extent, to try and get around having to accommodate employees who require religious or disability based accommodation.

So I think a lot of that needs to come from the guidance that the EEOC is putting out. I think that needs to come from the investigations that the EEOC is conducting, if any of these claims are brought. I think that employers, HR professionals and employees all need to get on the same page and understanding that, for example, CDC and OSHA guidelines are subject to EEO law and any accommodation requests need to be considered in response to that.

Vice Chair Samuels: That's helpful. Thank you. Just following up with you on a different topic, have you been hearing reports from your members about harassment that they are encountering in the workplace given the wave of attacks on Asian-Americans and Pacific Islanders that we have been seeing over the course of the last several weeks.

Ms. Kaur: You know, that's an interesting question because I think the intersection of discrimination is real in these types of employment cases. It's not just about addressing COVID-19 safety issues, I think there's a combination of that and a real lack of cultural competence on the part of many employers and employees. So yes, we have seen aspects of that. I think there's a real sort of disregard for people of minority faiths who are trying to practice their sincerely held religious beliefs in the workplace. And often that's met by a hostile work environment where their fellow employees sort of feel like they're looking for a handout when nobody else is getting the handout in the scope of the pandemic.

I think it also comes in the form of retaliation where they're being required to segregate themselves or take on roles and responsibilities that are just not commensurate with what they signed on for. And whether that's directly related to the anti-Asian discrimination that we've been seeing throughout the country, it's hard to tell, but I think you can connect the dots. It's not just a matter of the religious or the COVID-19 discrimination. There's definitely an intersection there of Asian, South Asian discrimination on the whole.

Vice Chair Samuels: Well, thank you so much. Sadly. I think that I am out of time. I have many more questions, and I'm so grateful to all the witnesses for being here. I hope that we can continue this dialogue and thanks again to the Chair for having scheduled this really valuable hearing for us.

Chair Burrows: Sorry. Thank you. I would go to Commissioner Dhillon next.

Commissioner Dhillon: Thank you. Mr. Eastman, in your prepared remarks and in your testimony, you talked about the question of vaccine incentives and what employers that you have been working with, how they're thinking through those issues. Can you talk about the kinds of incentives that employers are considering, that they think might be useful and motivate their employees to get a COVID vaccine?

Mr. Eastman: There's a wide range. With some it's a cash award, maybe in the range of a $100, with others it's time off, time to go get the vaccine and it could be paid leave beyond that. And then there are things that are more tokens, swag was mentioned earlier in the day. So there's a variety. And this runs into complications with other laws as well, wage and hour in particular, where it can get really complicated depending on the type of vaccine, excuse me, the type of incentive you offer.

Commissioner Dhillon: Mm-hmm (affirmative).

Mr. Eastman: So those are on the table.

Commissioner Dhillon: What about employers who are shying away from any kind of incentives, notwithstanding the fact that they wouldn't like to see their workforce vaccinated? Are you working with any of those kinds of employers and talk about the concerns that they have or what's holding them back from offering incentives?

Mr. Eastman: Right. So first of all, there are employers that are simply encouraging people to get the vaccine without offering a particular incentive. And many of them are engaged in fairly sophisticated campaigns. And some employers take a less aggressive approach. There's a range of reasons why. Some it's simply an employee choice question, but for others, it really is this question of not knowing what kind of trouble they're walking into if they offer the incentive.

Commissioner Dhillon: Switching gears, what kinds of EEOC outreach on COVID-19 do your employers find to be particularly effective and useful?

Mr. Eastman: So we're not looking for legal treatise, right. We've found during the pandemic, especially, short guidance such as in the What You Should Know documents or in the webinar that the Commission produced a year ago is actually quite helpful. Even for sophisticated employers to get these bite-sized pieces of guidance that address specific questions.

Commissioner Dhillon: Well, that's helpful. And I'd agree with you, I think that the EEOC lawyers, the Office of Legal Counsel, did a really fine job on that webinar. And it's been viewed many, many times, we found on our website’s statistics, so thank you. Ms. Hocker, think I'll come back to you. In 2019, you launched the nation's first prize competition aimed at private sector innovation and career advancement for individuals with intellectual and developmental disabilities resulting in national training and technical assistance centers to replicate these models. From an ADA standpoint, what were some of the winners that you think other employers could easily implement as they bring employees back into the workforce?

Ms. Hocker: Thank you for that question. We were very thrilled to launch that prize competition. For those not familiar with it, it really was the recognition that this isn't just about a job. That many, many Americans with disabilities, just like the general population, want to build careers and they need ongoing training and support just like anyone else to be successful. This was about developing a pipeline of talent, these companies. We started with over 50 private sector employers. We've whittled down, I understand, now to three and they're headed into the final round. And I'll say this. A couple of things that I noticed when I was Commissioner reviewing the applications and overseeing training as they moved through phase two and then reviewing the finalists, [inaudible 03:57:05], that's public information now. And I'll say just a couple of things. Number one, these employers are excited to do this work. They're eager to work with students.

Number two, every single one of these finalists are organizations we're working with our [inaudible 03:57:20] regional rehab, end or non-profit organizations that have specific knowledge and skills to really inform the recruitment, retention, and development and training of workers with disabilities. Some of them were using technology, some of them were using universal design. Some of them were really trying to understand where is it easy to reach individuals with disabilities and to work with them to get excited to join our nation's workforce. And I would say, you should take away from that there's great infrastructure already in our country that can easily identify people with disabilities who are eager to work, they're ready to work and they can be supported through these organizations, including existing institutional rehab, which is in every state and territory in the United States.

But I think you should take away that the pipeline does exist. People do have the supports, but these employers are really demonstrating the way in which to make those connections. I will say that there seems to be a specific focus on neuro-diverse candidates and specific jobs and talents. I think we should also be excited that these employers aren't just recruiting people with disabilities, but in fact recognizing that with disabilities also come unique strengths, talents, and assets to organizations. Really excited to see that too.

Commissioner Dhillon: Thank you. I believe my time is up. Thank you, Ms. Hocker, and thanks to all of the witnesses who have appeared here today.

Chair Burrows: Thank you. Commissioner Sonderling, please.

Commissioner Sonderling: Thank you, Ms. Hocker. I'm actually going to stay with you. So because of the COVID-19 pandemic, major metropolitan areas such as here in Washington DC and New York city have significantly limited their public transportation availability. Many essential workers and those with disabilities have historically relied upon such transportation. So now with some schedule reductions becoming permanent due to decreases in ridership and budget issues, what can employers do to accommodate disabled workers that solely rely on public transportation?

Ms. Hocker: Well, thank you for that question, Commissioner. As you know, individuals with disabilities in the United States have the right to access their community. That's a decision that the Supreme Court held up nearly 22 years ago. And so the right to live, work, play, be educated, and enjoy all facets of community living is a long held right of Americans with disabilities. And so this certainly extends our ability to access places of employment.

And I would say when the pandemic hit and long into the pandemic, one of the things that we continued to struggle with was access to transportation, food, and healthcare. These essentials just became very, very difficult for individuals. And that'll continue, like you said. I think one thing that we need to recognize is that one, we need to have, again, that conversation between the private sector and the public sector and the nonprofit sector. There are, for example, centers for independent living communities all across the nation, if not all of our states and territories, that can partner with individuals with disabilities and find resources for them.

But it's also a conversation that local jurisdictions need to be having to ensure that those communities remain accessible and that people with disabilities can get to work, but they can also get to the grocery store, get to the mall, get out to dinner and see a movie with their friends and enjoy all aspects of community living. You're right. It certainly is a conversation. We're grateful to see organizations that are APPS-based on our phones that provide transportation becoming more and more accessible. But having that and consistent dependable bus routes or subway stops is really something that I think we're going to talk about as a nation as we talk about infrastructure, but we need to talk about if people can rely on it and their complete access to community living across the nation, certainly will be a barrier.

Commissioner Sonderling: Thank you. And I hope the EEOC can help employers in that area. It's very important.

Ms. Hocker: Absolutely.

Commissioner Sonderling: Moving on to Mr. East. There's a lot of news related to workers requesting exemptions from vaccine policies due to sincerely held religious beliefs or due to a pregnancy. But requests for accommodations related to a disability can involve more complicated analysis than employee's own condition and the unique accommodations based on that condition, which then may lead to other claims if the questions go too far. So a few questions for you, one, are employers having difficulty assessing reasonable accommodations concerning the vaccine? What kinds of reasonable accommodations should employers be offering, and what can the EEOC do to help in this area related to the vaccine?

Mr. East: Yeah, thank you. We have not seen much ourselves in this area. And the other thing that I think is interesting is that the identified risk factors for the vaccines may vary across the vaccines, but for some of them, for the Pfizer and for the Moderna, there are very few that are understood to be a risk factor. So one question is going to be which vaccine are we talking about and what risk factors have been identified because people may feel like they have a risk factor when there isn't a scientific basis for it. But there is a scientific basis for risk because of a disability. I think the EEOC guidance has indicated that this could be an issue, both religious and disability-based accommodations, but we don't know too much more than that. I've not seen any cases like that.

And when I looked for pre COVID-19 vaccination issues in the case law, there certainly are some, but they're mostly religious and not typically disability-based. So I think this is an area in which we don't know. I think we know generally but certainly in our organization; we don't know exactly how widespread the problem is going to be for people with disabilities. So then the question is, assuming someone does have a basis for resisting getting a vaccine because of health issues, what can be done? And so for the employer, I think the employer is going to be looking at direct threat issues and needs to be thinking about what else can we do as an accommodation for this person who can't get the vaccine? Now that the workplace has so many people vaccinated the risk of transmission is very low, where we are in our workspace, is there a way that they can continue to telework or to have a different office space or have different ventilation systems? So there's a lot of things that come up, and we don't know too much about it yet.

Commissioner Sonderling: Thank you very much. And thank you to everyone on the panel.

Chair Burrows: Thank you. Commissioner Lucas.

Commissioner Lucas: Thank you again. And once again, so many questions, so little time, but I'm so thankful for everyone for spending their time today. And it's just been so enlightening. So I'm hoping this is my remaining five minutes to talk first to Ms. Kaur, then Mr. East and then Ms. Hocker, but we'll see if I can get through everyone. So Ms. Kaur, you talked about how it might be helpful to have some implementation documents following the update to the religious guidance. So are you thinking of sort of additional technical assistance or other application documents that would be helpful in terms of kind of, for example, the fact sheets or other sort of target applications of our updated guidance?

Ms. Kaur: Yeah, I'm thinking about it in terms of a lot of the supplemental guidance that the EEOC puts out in relation to other types of guidance and compliance manuals, like WYSKs, fact sheets, FAQs, those kinds of things. I feel like being a practitioner, I mean, very rarely am I pulling the entire guidance. What I'm going to are these supplemental documents to get sort of the quick answers that I'm looking for in real time. And I think that if that type of supplemental record has been created, it'll be much more informative for employers, for employees, for attorneys across the board, HR administrators, to kind of just really have a quick reference guide on how the EEOC may view certain expectations and obligations that they have, that the employees have. So I feel like there's a lot of weight behind that supplemental record for people that are in this practice.

Commissioner Lucas: I certainly agree and I hope we'll be doing that as well. Yeah, I appreciate you highlighting the important issue of PPE accommodation. Now, the EEOC has been pretty clear in its guidance that a cost benefit analysis doesn't determine whether or not an accommodation will cause undue hardship and therefore it's not unreasonable, but I'm wondering if you thought it might be valuable for employers to consider as a practical consideration to keep in mind the opportunity costs of losing an employee of faith in the pandemic, for example, if they don't accommodate them. So even if that isn't sort of a formal part of the legal analysis, considering that if you don't accommodate someone, for example, by giving them a PAPR or some alternate form of PPE that you're going to potentially really lose out on a great employee.

Ms. Kaur: Absolutely, Commissioner Lucas. It's one of the reasons that as soon as the CDC came out declaring that racism was a serious public health crisis, I immediately took that because there's such an intersection between racism and religious discrimination in the workplace. And I think you hit the nail on the head when there are policies in place that don't take EEO law into account, that is an example of systemic bias within our workplaces. And to your point, these policies harm minority employees, and they've also harmed the general public because what they're doing is limiting access from talented minorities from entering and remaining within these workplaces.

In practice, much of what we see related to the COVID-19 pandemic has resulted not just in the risk of termination for employees that are already in the workforce, but also a failure to hire a number of employees that require these types of accommodations. And when you don't have them in place, especially in the healthcare industry, that's a wealth of knowledge and information that isn't getting out to the general public. And if we don't allow that to happen, I mean who knows what sort of advancements we could be missing out on?

Commissioner Lucas: Thank you so much. My next question or set of questions is for Mr. East. In your testimony, you suggested that COVID-19 should be considered an actual disability, even if it was of short duration. And I'm wondering if you're aware of any cases in which courts have found other illnesses of short duration are actual disabilities under the ADA.

Mr. East: Yes, there are cases. So the EEOC guidance to the ADA Amendments Act points out that there is no longer any duration requirement. And for example, something that lasts less than six months can be a disability. And it also sort of recognizes that the more serious a condition is, the shorter in duration it can be and still be substantially limiting. The less serious it is, it may need to be of longer duration. But for example, there's one of the early cases on this is Summers v. Altarum from the 4th circuit where the court was dealing with someone who fractured their knee in a fall and the court recognized, again, that it doesn't have to be permanent or long-term to be pre ADAAA language, and it can be of shorter duration. So I think these shorter things can be important. But the other thing I would point out is that in Bragdon v Abbott, even before the ADAAA, the court looked at things like public health impact, economic, and legal impact in assessing whether something's an essential limitation and obviously the impact of COVID-19 has been huge.

Commissioner Lucas: Thank you very much. And I don't think we will get to Ms. Hocker, but I'm so grateful for all the panelists, and thank you to my fellow commissioners. I hope that we'll continue this conversation in many other forums.

Chair Burrows: Thank you, Commissioner Lucas. So I would direct my first question to Ms. McCann, and I thought your testimony was very helpful in pointing out how unfortunately this pandemic has been particularly challenging for a whole generation of workers who are approaching retirement age, and they're also navigating additional risks, including particular vulnerability to COVID-19, and the persistence of discrimination and stereotypes based on age. You indicated that older workers may have a particularly tough time finding new employment if they are laid off during this pandemic. And that some employers increasingly are screening applicants in ways that deny older workers a fair opportunity to apply for employment. So I wanted to just ask you to elaborate a bit on that, and also your ideas about how EEOC may address it. You mentioned some of them earlier, but in particular, I'm interested in the way that employees are being screened today that may have been different previously and how those are impacting older workers?

Ms. McCann: Sure. So the job search today and how you do it and what it entails is different from how it was even 10 years ago. Almost everything is done online. And although, I think it's a horrible stereotype that older workers don't have the technology to apply online, they do, but what they don't have control over is what happens once they submit that application. And some of it is that employers are asking for age, I mean, they're still asking. AARP did a survey not too long ago ,and it was shocking the number of instances of employers asking for age-related information on a job application, whether it be date of birth or graduation date. But it could be even job requirements that you have no more than seven years of experience, for example, just assuming that someone with more than that number of years of experience wouldn't be interested or challenged by the job.

But even more difficult or what's going on behind the scenes with employers using artificial intelligence and algorithms to try to find employees that are a good fit for them, which is not a malicious intent, but if they're using the "I want more employees like this because these are my best employees and I want more of them", and those employees are young workers, then the algorithm is just going to look for more young workers. And we also see on all these digital platforms that are requiring a date of graduation or at least strongly encouraging that you put your date of graduation. That is just way too easy for employers to screen out older workers. And it's just the older worker is helpless to avoid this type of discrimination. So more as I explained in the testimony and in my statement, just more guidance on that it's just inappropriate to ask for this information. And then just more research and more study as to how some of the new ways of recruiting and hiring older workers might be adversely impacting older workers.

Chair Burrows: Thank you. That's very helpful. I would go next to Mr. Eastman. And I would just ask, you mentioned in your testimony, both your written testimony, your oral testimony, that one of the issues that employers are encountering is the possible disparate impact, if you will, of employment decisions that are not intended to fall in particular on any one group, but that may have the effect, if you will, of screening out folks based on race or national origin or gender or any of the other categories that are protected under the statutes we enforce such as disability or age and religion as well. And so I was just wondering, you've raised that and it's one of the areas that I thought I would ask you about, do you see any potential disparate impacts from requirements for employees to be vaccinated and in particular regarding either the availability of vaccines or other issues?

Mr. Eastman: I think it's absolutely possible. No, I don't know that it will come to pass, but I think we have to... Understanding the data as we see them today, it is absolutely possible that a mandatory vaccine policy could have a disparate impact. So as an employer, if you're going to make that decision, you have to be prepared to make the business case for it. And why was that the right policy choice to make?

Chair Burrows: That is helpful to know. I think I'm out of time. This has been, I have to say and I think I probably speak not just for the folks here, but everyone who is listening virtually, I found each and every one of you to have given us absolutely fabulous testimony, both in person and in writing. And I could not be more grateful to you for that. It has been extremely informative. I think it will be extremely helpful as we look forward to our next actions as a Commission, and I would say that I am just enormously, enormously grateful to all of you. And that concludes today's presentation of testimony and questioning. I would like to thank again our panelists for participating in this hearing and for sharing your expertise with the Commission and the public. Your insights have been absolutely invaluable.

We at the Commission view 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. We will hold the Commission hearing record open for an additional 15 days, and we would invite you and anyone else in the virtual audience to share with us your thoughts. You may submit written questions and comments on the subject of today's hearing, and you can learn more about how to submit comments on our website, www.eeoc.gov. And with that we are adjourned. I thank you all very much.