The Obama Administration’s Equal Employment Opportunity Commission has taken an aggressive approach to improving diversity in the workforce, said Paul Patten, a partner with Jackson Lewis LLP in Chicago.
In recent years, the EEOC has focused on employment practices that have a disproportionate impact on minorities and the disabled, said Patten, who delivered the keynote speech at the Human Resources Rules and Legal Ramifications seminar hosted by The Daily News on Thursday, Aug. 8, at the Memphis Brooks Museum of Art. That renewed focus on increasing diversity in the workforce is challenging longstanding human resources practices, he said.
“The EEOC is focusing on neutral rules that are not discriminatory on their face based on race or sex,” he said. “What they are saying is that these rules, they may make sense, they may be neutral, but in the end, they are not friendly to disabled people or to racial minorities.”
The EEOC’s renewed focus on human resources practices that disproportionately hurt minorities and the disabled has had consequences for employers that automatically deny people jobs based on arrest or conviction records. Last year, the EEOC issued guidance that advised employers against the use of blanket criminal background checks to weed out job applicants.
According to the EEOC, about one out of every 106 white males will serve prison during his lifetime. That figure drops to one out of every 36 for Hispanic males, and one out of every 15 for African-American males.
“The EEOC looks at these statistics and says with everyone doing criminal background checks – it’s too hard for African-Americans and Hispanics to get jobs,” Patten explained.
The EEOC recently sued Goodlettsville, Tenn.-based Dollar General and a U.S. unit of German automaker BMW AG, alleging the companies refused to hire applicants with criminal records, when the companies should have individually considered each applicant. The lawsuits said the companies’ practices disparately impact blacks, who have higher arrest and conviction rates than whites.
“The commandment to treat everyone equally now has a footnote or a caveat on it,” Patten told The Daily News in an earlier interview. “There are now major categories where you have to consider treating certain employees specially, and not treating everyone equally.”
Criminal background checks aren’t illegal, but employers are advised to individually evaluate each candidate. The EEOC has issued guidance that makes it clear employers must take into account the seriousness of the offense, the time lapsed since the offense and the relevance of the crime.
Some audience members had concerns about EEOC policies that clash with state and local laws that bar people with criminal records from working with children, the elderly and other vulnerable populations.
While those laws vary widely by state and at the local level, Patten said many areas of disparate impact law remain hazy and challenging for employers – especially as companies await more guidance from the EEOC on certain areas.
The EEOC also has targeted employers that refuse to extend an employee’s leave of absence beyond the 12 weeks extended by the Family and Medical Leave Act. Employees with a serious health condition may request an extended leave of absence under the Americans with Disabilities Act, which protects employees with disabilities from discrimination in the workplace. The EEOC has challenged employers who do not make reasonable accommodations to accommodate employees who need more time to get well after a prolonged illness or to care for an immediate family member, Patten said.
Ray Stitle, chief people officer of Monogram Foods, and seminar panelist, said his approach to human resources has evolved in the last decade.
“We now go out of our way to find ways to keep people,” he said. “We’ve found new ways to be flexible.”
Stitle said that includes making sure literacy tests administered to non-native English speaking employees don’t have cultural barriers, and using standardized and federally recognized programs like E-Verify to make sure employees are eligible to work in the U.S.
If the system flags an employee, Stitle said Monogram generally allows the employee or applicant to work with authorities to resolve the issue.
“We don’t do anything unless there is evidence,” he said.
Another panelist, Judy Bell, a senior executive in human resources and development with HRO Partners, addressed questions about workplace bullying and harassment.
Employers need to have a zero tolerance policy that makes it clear to employees and managers that those behaviors will not be permitted, she said.
“I’m a big proponent of ethics hotlines,” she said. “These behaviors need to be discouraged.”
Other lively panel discussion addressed everything from the use of psychological and personality assessments to make job hires to how to deal with employees who request additional accommodations because of medical conditions like adult Attention Deficit Disorder (ADD).
“Human resources is very strained – and the role they have at the table needs to be taken seriously,” Patten said.