A Chat With The EEOC, the NYS Division of Human Rights, and the NYC Commission on Human Rights

Last night I had the pleasure of listening to what representatives of three esteemed agencies had to say: an ADR coordinator at the Equal Employment Opportunity Commission or “EEOC,” the federal agency that enforces the federal anti-discrimination laws; the assistant commissioner for the New York State Division of Human Rights; and the general counsel for the New York City Commission on Human Rights.

These agency representatives had several pearls of wisdom that I wanted to share with you.

Today, we’ll focus on the EEOC.

EEOC Position Statements

Employers, the EEOC is seeing a raft of disability and COVID-19 related discrimination complaints, including employees who do NOT want to return to the office.

Hello the #GreatResignation.

When an employee files a Charge of Discrimination with the EEOC, the EEOC asks both the employee (the “Charging Party”) and the employer to provide information as part of its investigation. Usually, the EEOC requests that the employer submit a statement of its position (known as a “position statement”) with supporting documentation.

Last night, the EEOC advised employers to make sure that position statements include efforts to engage in the interactive process, documentation of the process, and, before terminating an employee, information demonstrating that the employer tried to reassign the person.

Reassignment is one reasonable accommodation employers can make for an employee or applicant with a disability under the Americans With Disabilities Act (ADA), including long COVID-19. Remember employers, even if temporary, long-COVID symptoms can be a disability under the ADA if it substantially impairs a worker’s major life activities.

Include the results of the attempt at reassignment, i.e., that the employee would not accept the reassignment or that reassignment was not possible and why.

Speaking of the Interactive Process—On that same note, all agencies reminded employers that the failure to engage in interactive process—or cooperative dialogue as it is called in New York— is straight-up discrimination.

The EEOC’s Focus—Advice for Employers

While the EEOC reviews charges on a case by case basis, the EEOC reminded employers to consider and review its strategic enforcement plan, which focuses on the following points:

• Protecting immigrant, migrant, and other vulnerable workers,

• Disability and pregnancy discrimination,

• Discrimination against Muslim and AAPI workers,

• Inflexible leave policies (that’s a big one),

• Protecting the LGBTQIA community from discrimination and harassment, including sex stereotyping, and

• Preventing systemic harassment.

Here is the full list of EEOC priorities.

Mediation Best Practices

Sometimes, the employer and employee will agree to mediate the employee’s charge of discrimination. In that case, the EEOC delays investigating the matter in the hopes that the parties can settle their dispute.

The EEOC’s top tips for mediation include:

1. Bringing as much information as possible to the mediation so that the mediator can evaluate the strengths and weaknesses of case.

2. Mediators promote transparency between the parties so that both sides can make educated decisions.

3. Mediation is always voluntary, and it is confidential, internally and externally.

4. Here’s one I did not know—counsel can ask the mediator before agreeing to mediate what the employee wants.

This last tip is a big one! Employers can utilize a mediator’s services before the actual mediation to make a more educated decision about whether mediation makes sense for their business.

EEOC updates

Last week, the EEOC released The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees, which helps employers that use algorithms and artificial intelligence avoid discriminating against employees and applicants in the process.

My partner Eric Meyer has a fantastic blog post about the EEOC’s guidance concerning the use of algorithms in hiring.

The EEOC also let participants know that it is inundated by COVID-19 vaccine mandate cases and reminded employers to consider accommodations and take requests for religious accommodations seriously.

Next Up:

Later this week, I’ll tell you what the New York State and City agencies had to say about probable cause standards in investigations.