Category Archives: EEOC

Two Tough Lessons on Training

New commercial truck drivers must cover thousands of miles with a trainer before they can work on their own. For women, that means ThinkstockPhotos-57533192spending weeks in close quarters with a boss who most likely is a man.

What could go wrong?

A pair of recent Equal Employment Opportunity Commission cases suggests the situation is every bit as risky — both for drivers and employers — as you might think.

The cases involve two trucking companies that got in trouble over sexual harassment of female trainees. One escaped major sanctions and may even recover legal costs from the agency, thanks to a U.S. Supreme Court ruling that lawyers call a victory for employers.

The other … let’s just say it didn’t go well.

That company, Missouri-based Prime Inc., is one of the nation’s largest long-haul truck companies. After a female trainee charged the company with sexual harassment and the EEOC sued, the company in 2004 adopted a new procedure: women trainees were paired only with female trainers.

But in the end, the new procedure apparently did far more harm than good.

Because the company had only five women trainers, according to the EEOC, women trainees had to wait a year or more to get in. Men, however, were accepted immediately.

In 2011 the EEOC sued again, and U.S. District Court Judge Douglas Harpool didn’t have much trouble concluding the training practice was discriminatory. In April he signed a consent decree ordering the company to pay $2.9 million to 68 women who had applied to the company’s training program.

The settlements, which include back pay and compensatory damages, ranged from about $29,000 to nearly $92,000 each. The company also agreed to hire all the women immediately. In addition, the company paid $250,000 to another female driver trainee who had brought the complaint to the EEOC.

On top of that, the company — which finally ended its same-sex training policy in 2013, two years after the EEOC filed suit — promised not to reinstitute the practice.

Was Prime’s 2004 training policy a well-intentioned response to the first complaint that accidentally led to a second one? Or a passive-aggressive jab at women who had complained? In a final order in the case dated May 26, the judge says he can’t tell.

“While Prime’s same-gender training policy was illegal, misguided, and ill-advised, the court is not willing to find … [it] was evil or malicious,” Harpool writes.

The other trucking company fared better in its battle with the EEOC. On May 19 the U.S. Supreme Court unanimously found that Iowa-based CRST Van Expedited Inc. may be entitled to $4.5 million in legal expenses it incurred battling the agency over another sexual-harassment case.

The case stems from a 2005 claim by a female driver trainee who said she was sexually harassed. Two years later the EEOC filed a class-action suit on behalf of 250 women whom it said had been victimized. Most of those plaintiffs were dismissed, however, after the court found the EEOC had not properly investigated their claims.

Employment lawyers lauded the Supreme Court’s ruling as a victory for employers.  The ruling “has made clear that a defendant may be entitled to recover attorneys’ fees even absent a victory on the merits,” write Lindsey M. Marcus and Michael A. Warner Jr., partners in the employment law practice of Franczek Radelet in Chicago.

Though the outcomes were very different, the lesson for folks in HR is the same: Training, like trucking, can be a risky business.

 

 

 

 

 

 

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EEOC Spotlights Diversity in Tech

A unusual forum held in the nation’s capital last week signals growing regulatory interest in the technology industry’s hiring and promotion practices.

ThinkstockPhotos-524374920The Equal Employment Opportunity Commission held the May 18 meeting about diversity in the industry as it released a report confirming what everyone already knows: tech is mostly white, male and young.

Does the hearing suggest the EEOC may soon come down on tech employers with formal guidance or even enforcement action? Labor lawyers say no — at least for now.

“I think the EEOC’s goal is to keep the issue in the spotlight,” says Erin M. Connell, a partner and employment lawyer at Orrick, Herrington & Sutcliffe in San Francisco who testified at the forum.

The effort continues a campaign by civil rights leader Rev. Jesse Jackson to pressure tech companies to become more diverse — and transparent — in employment, she notes.

Industry leaders “are hitting this at all levels,” says Connell, who counts many technology companies as clients. “They want to improve their numbers — because of the public pressure, because of the moral imperative … and because there’s a business case for diversity.”

Research has shown that “companies with higher diversity have better business results,” Connell says. This is particularly true when they serve — as tech companies do — a diverse population of customers.

The EEOC report looked at diversity data for the industry nationally as well as in Silicon Valley. It finds that whites account for 69 percent of the U.S. tech workforce, compared to 63 percent in all private employment. Among executives and managers in tech, 83 percent are white.

All employees Executives and managers
Tech All industries Tech All industries
White 69% 63% 83% 87%
Asian 14% 6% 11% 5%
Hispanic 8% 14% 3% 4%
Black 7% 14% 2% 3%
Other 2% 3% 1% 1%
Men 64% 52% 80% 71%
Women 36% 48% 20% 29%
Source: EEOC

Asian Americans also are overrepresented, compared to their share of all private employment. About 14 percent of tech employees, and 11 percent of tech managers and executives, are Asian American. That compares to 6 percent of workers across all industries.

Hispanic and black workers are, as a result, underrepresented in tech, often dramatically. And so are women: They account for 36 percent of all tech workers and 20 percent of executives and managers in tech, compared to nearly half of all jobs in private industry.

Though the report did not break down workers by age, another panelist at last week’s forum offered a scorching appraisal of the role age bias plays in the industry.

“Job postings declaring a preference for new or recent graduates are common, and some companies have actually specified which graduating class they are seeking,” said Laurie McCann, a senior attorney with the AARP Foundation, according to an EEOC news release.

Panelists didn’t necessarily agree about the best strategy for the industry to diversify. Some who testified put an emphasis on reform of industry hiring and funding practices. A cloistered world of CEOs and venture capitalists who look and think like each other perpetuates the problem, some argued. Greater emphasis on techniques to minimize unconscious hiring bias could help, they said.

Connell and others argued that improved educational opportunities are key, including industry-sponsored tech boot camps for girls and minority youth. Closing the gap in employment requires enlarging the pipeline of young people interested in the industry, she says.

In any case, Connell says she sees no sign that the EEOC plans to do more than nudge the industry to improve.

“It’s never off the table — I don’t want to give any false comfort there,” Connell says. But “I did not get the sense that any enforcement mechanisms are on the horizon.”

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Supreme Court Deals a Blow to the EEOC

The upshot of today’s U.S. Supreme Court unanimous ruling in favor of a trucking company in CRST Van Expedited Inc. v. EEOC is that a company can still be considered the prevailing party in a court case — and thus be eligible for reimbursement of its legal fees by the other party — even if it doesn’t win a favorable judgment on the merits of its argument.

CRST, a trucking company, had been awarded a record $4.7 million in legal fees against the Equal Employment Opportunity Commission by a trial court after a class action brought against the company by the EEOC on behalf of 154 female drivers was found to have been without merit. The EEOC’s suit had alleged that CRST allowed “severe and pervasive” sexual harassment against female drivers in its driver-training program. The case was later dismissed by the court because it found that the EEOC had failed to show a pattern or practice of discrimination, nor did it fully investigate the claims, find reasonable cause and attempt reconciliation prior to filing suit.

However, the 8th Circuit Court of Appeals vacated the $4.7 million award because the claims were dismissed without ruling on their merit and thus CRST was ineligible per Title VII of the 1964 Civil Rights Act, which grants attorney fee awards to “prevailing” defendants who can show the EEOC’s position was “unreasonable or frivolous.”

Writing for the court, Justice Anthony Kennedy said there was no indication that Congress had intended “that defendants should be eligible to recover attorney’s fees only when courts dispose of claims on their merits.”

“It would make little sense if Congress’ policy of ‘sparing defendants from the cost of frivolous litigation’ depended on the distinction between merits-based and non-merits-based frivolity.”

The ruling sends the case back to the lower court for further review.

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Sieving Through the EEOC’s Data

Yesterday, the U.S. Equal Employment Opportunity Commission released its breakdown of workplace-discrimination charges that the agency received in fiscal year 2015 (Oct. 1, 2014, through Sept. 30, 2015)—and, to no one’s surprise, retaliation charges topped the list, representing 44.5 percent of all charges.

ThinkstockPhotos-177129299What is somewhat notable about the number of retaliation charges, however, is the fact that it climbed 5 percent from a year earlier. (Only disability charges, ranked third on the list after race, climbed more, at 6 percent.)

Thomas B. Lewis, a shareholder with Stevens & Lee law firm in Lawrenceville, N.J., is among the ranks of those not surprised by the number of retaliation claims being filed.

“In my view,” Lewis says, “retaliation is the most subjective charge that can be filed, because employees have different definitions of what retaliation means. Oftentimes, if employees haven’t been given a raise or given a promotion, they’re going to believe they’re being retaliated against… . It all comes down to what the employee believes is happening.”

Lewis adds that the 5 percent jump from the year before is significant. “There are retaliation claims out there in which employees believe they are being retaliated against just by the way the manager looks at them.”

Of the charges on the EEOC’s list, he adds, retaliation claims are extremely difficult to prove, both for the company and the employee.

We also probably shouldn’t overlook the fact that 10 percentage points separate retaliation claims from the next nearest category of charges: race. That’s a pretty noticeable gap between No. 1 and No. 2.

In its release, the EEOC reports that it resolved 92,641 charges in fiscal year 2015, and secured more than $525 million for victims of discrimination through voluntary resolutions and litigation. However, as might be expected, most of the charges were resolved through mediation.

The agency, in fact, filed 142 merits lawsuits last year. Sure, that was an increase of nine from a year earlier, but still represents only a small portion of the 89,385 claims filed. “For a national organization covering all 50 states and trying to protect the rights of employees from all forms of discrimination,” Lewis said, “it’s [noteworthy] that so few discrimination claims actually resulted in the EEOC taking a position and advocating that position on behalf of employees.”

In case you’re wondering, the majority of the lawsuits filed alleged violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

Of course, if you’re an employer, it’s hard to find comfort in the number of claims being filed these days, especially the increase in retaliation claims. But for anyone who finds himself or herself on the receiving end of one or more claims, Lewis’ advice is to do your best to try to resolve them amicably. And if you can’t? Then try to resolve them through mediation, an approach, Lewis says, the EEOC will often push for.

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EEOC Wants Pay Data From Employers

Under a new proposal from the Equal Employment Opportunity Commission, all employers with more than 100 workers will be required to furnish pay data to the federal government as part of their Employer Information Report (EEO-1), beginning with the September 2017 report. The objective, says the EEOC, is to make it easier for the government to spot potential cases of pay discrimination and to assist employers in promoting equal pay in their workplaces.

The proposal will be announced today in conjunction with a White House ceremony commemorating the seventh anniversary of the Lily Ledbetter Fair Pay Act.

“More than 50 years after pay discrimination became illegal it remains a persistent problem for too many Americans,” said EEOC Chair Jenny R. Yang in a statement. “Collecting pay data is a significant step forward in addressing discriminatory pay practices.”

“We can’t know what we don’t know,” said Secretary of Labor Thomas E. Perez. “We can’t deliver on the promise of equal pay unless we have the best, most comprehensive information about what people earn.”

The collected pay data will help employers evaluate their own pay practices to prevent pay discrimination in their workplaces while giving the Labor Dept. “a more powerful tool” to do its enforcement work, said Perez.

The EEOC proposal is in response to a task force set up by President Obama, which recommended new data-collection requirements to combat pay discrimination in the workplace.

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Avoiding Legal ‘Hot Spots’ in 2016

The Equal Employment Opportunity Commission’s Fiscal Year 2015 was another year of blockbuster decisions that significantly changed the landscape of EEOC-initiated litigation.

That’s according to Seyfarth Shaw, which has just released its annual report on EEOC legal activities and court rulings, entitled EEOC-Initiated Litigation: Case Law Developments In 2015 And Trends To Watch For In 2016.

Authored by Seyfarth lawyers Gerald L. Maatman, Jr., Christopher J. DeGroff, and Matthew J. Gagnon, this year’s report compiles, analyzes, and categorizes the major case filings and decisions involving the EEOC in 2015.

Notably, FY2015 saw the EEOC nearing the end of its 2013-2016 Strategic Enforcement Plan. This year, the report has been arranged in to four main parts:

  • Part I of the book is structured as a “Corporate Counsel’s Guide to EEOC Litigation: Developments in FY2015.” In this section, the authors address the important developments in FY2015 as they relate to each stage of an EEOC enforcement action, from the filing of a charge of discrimination through settlement or a determination on the merits. The Guide includes a special section devoted to the pivotal Supreme Court ruling in Mach Mining, LLC v. EEOC, which arguably changed the game with respect to the conciliation phase, a crucial phase of any EEOC matter.
  •  Part II provides a broad overview of the substantive theories that the EEOC has focused on in FY2015, paying particular attention to how those theories relate to the enforcement priorities set out in the SEP. Again this year, the authors have analyzed the EEOC filings in FY2015 by statute and by discrimination type under Title VII. This year, the report takes a closer look at those trends as they relate to particular industries, aka the hot spots. The “Industry-By-Industry” section collects the number and types of filings that affect particular industries, and analyzes what this reveals about what particular industries must keep top of mind going into 2016. In FY2015, the breakdown of filings by industry was Hospitality (34); Healthcare (31); Business Services (25); Manufacturing (20); Retail (19); and Construction and Natural Resources (14).
  •  Part III examines important legislative and political developments, and takes a look at what may be on the horizon for EEOC litigation. The EEOC has increasingly focused its energies on the strategic use of large, high-profile “systemic” cases to drive its mission. These are cases that address policies or patterns or practices that have a broad impact on a region, industry or entire classes of employees or job applicants.
  •  Part IV contains every significant court decision that came down in 2015 regarding EEOC-initiated litigation. The decisions are categorized according to subject matter so as to provide practitioners with an easy reference manual for those decisions.

The full report is available at Seyfarth’s Workplace Class Action Blog.

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EEOC Sues UPS Over Religious Discrimination

The U.S. Equal Opportunity Commission recently sued United Parcel Service, Inc., claiming the country’s largest package delivery company violated federal law by discriminating against employees’ religious rights.

The EEOC complaint, which was filed in the U.S. District Court for the Eastern District of New York, alleges that the company has failed to hire applicants and promote employees who wore either long beards or long hair due to their religion. The company’s policy requires supervisors and employees who come in contact with customers to shave their beards and also prohibits male employees in such positions from growing their hair below collar-length.

As an industry giant, UPS supports a sophisticated HR department that oversees roughly 300,000 employees nationwide. What went so wrong?

According to an EEOC statement, there were many examples of religious discrimination over the years. It mentions a Muslim who applied for a driver position in Rochester, NY. The man, who wore a beard as part of his religious observance, was told “he had to shave to get the position,” that “God would understand,” and that “he could apply for a lower-paying job if he wanted to keep his beard.” EEOC also pointed to Muslim and Christian employees at other UPS facilities who were “forced to shave their beards while they waited months or years for UPS to act on their requests for religious accommodation.”

Likewise, a part time load supervisor in Ft. Lauderdale, Fla., who was a Rastafarian, also did not cut his hair because of his religious beliefs. His manager told him that he did not “want any employees looking like women on (his) management team.” Apparently, the 1960s memo about gender equality has not reached everyone yet.

Rastafarians at other UPS facilities around the country were also denied positions. Some waited years for their requests for religious accommodations to be granted before getting positions they wanted.

Seems like we’ve been down this path before – companies blamed for violating Title VII of the Civil Rights Act of 1964. Just last June, for instance, the US Supreme Court accused Abercrombie & Fitch violated a Muslim woman’s religious rights when it refused to hire her for a store sales job because she wore a headscarf.

In this matter, “UPS has persistently enforced its appearance policy even when that policy conflicts with the religious beliefs of it applicants and employees,” states Robert D. Rose, the regional attorney for EEOC’s NY District Office. “No person should be forced to choose between their religion and a paycheck, and EEOC will seek to put an end to that longstanding practice at UPS.”

Not to fast. UPS is defending its employment practices, claiming they are legal and respect and accommodate religious differences. Automated forms for requesting religious accommodations are even posted on it website, www.upsjobs.com, adds Susan Rosenberg, a UPS spokesperson.

“UPS has for many years had protocols for employees to request religious accommodations including variations for appearance and grooming guidelines (i.e., hair length, beard) or work schedule adjustment for prayers,” she explains. “The company will review this case, and defend its practices that demonstrate a proven track record for accommodation.”

Stay tuned. This battle has just begun.

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EEOC’s ‘Historic’ Workplace Discrimination Ruling

In case you missed it late last week, the United States Equal Employment Opportunity Commission ruled workplace discrimination on the basis of sexual orientation is illegal under federal law.

“This historic ruling by the EEOC makes clear they agree workplace discrimination on the basis of sexual orientation, much like gender identity, is illegal,” Chad Griffin, president of the Human Rights Campaign in Washington, told Bloomberg BNA.

“While an important step, it also highlights the need for a comprehensive federal law permanently and clearly banning LGBT discrimination beyond employment to all areas of American life.”

The EEOC’s decision “is going to put an end to the vapid superficial treatment that this legal question has been getting for so long,” Greg Nevins, counsel for Lambda Legal’s southern regional office in Atlanta.

Many employers over the past few years have settled EEOC charges filed by workers alleging sexual orientation discrimination, Nevins said.

“I think there will be some employers that want to fight this, but there are already a lot who have said ‘we’re not going to be the ones arguing that employers can discriminate against gay and lesbian men and women,’ ” he said.

It will be very interesting in the coming weeks and months to see which organizations — if any — decide to challenge the EEOC’s ruling.

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EEOC Revises Pregnancy Bias Guidance

In case you missed it, the U.S. Equal Employment Opportunity Commission recently issued an update of its Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document, which are available on the EEOC’s website.

The updates to the Guidance are limited to several pages about the U.S. Supreme Court’s recent decision in Young v. UPS, issued in March 2015:

The updated Guidance reflects the Supreme Court’s conclusion that women may be able to prove unlawful pregnancy discrimination if the employer accommodated some workers but refused to accommodate pregnant women. The Court explained that employer policies that are not intended to discriminate on the basis of pregnancy may still violate the Pregnancy Discrimination Act if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification.

The decision in Young does not affect most of the July 2014 EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues and therefore the following topics remain the same:

  • the PDA’s application to current, past, and potential pregnancy;
  • termination or refusal to hire someone because she is pregnant and other prohibited employment actions based on pregnancy;
  • application of the PDA to lactation and breastfeeding;
  • prohibition of forced leave policies;
  • the obligation to treat women and men the same with respect to parental leave policies; and
  • access to health insurance.

The Court’s opinion did not address the effect of the ADA Amendments Act of 2008 on workers with pregnancy-related impairments. Therefore that discussion in the Guidance also remains the same. The Guidance notes that, “Changes to the definition of the term ‘disability’ resulting from enactment of the ADA Amendments Act of 2008 make it much easier for pregnant workers with pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to a reasonable accommodation under the ADA.”

Alexis Knapp, a Houston-based shareholder at Littler, says the guidance gives numerous examples of the EEOC’s view that employers who provide flexibility, leave, modified duty, and more to non-pregnant employees will be expected to extend those same opportunities to pregnant employees, in order to avoid an unlawful difference in treatment “because of” pregnancy.

She says the EEOC also encourages employers to look beyond the requirements of the Pregnancy Discrimination Act and into the Americans with Disabilities Act and other laws that may provide additional protections to employees who suffer from pregnancy related conditions.

“I think the message to employers,” she says, “is that, while we still have defensive strategies to draw from when challenged, the starting point is that we need to be having the conversation with the employee and engaging her in an interactive process about what her limitations are, how long she anticipates those limitations will last, and whether we can find a way to enable her to work safely in light of those limitations.  The answer may not always be ‘yes,’ but the conversation has to happen and must be in good faith. ”

But, she adds, there are additional things that HR needs to consider as well as a result of the new guidance.

“First, although this starts to sound repetitive after a while, we must be training our managers and supervisors about these obligations,” she says. “These conversations about pregnancy and potential accommodations begin (and often stay) at the line supervisor level—between an employee and to whom she reports.  We have to be wary of the manager or supervisor who responds ‘We don’t do that here’ or ‘This job doesn’t allow that.’  It is true that there will be times when a reasonable accommodation will not be available, or that it poses an undue hardship, but that is not a decision to be made in a vacuum without the benefit of someone who understands the organization’s obligations under the PDA and ADA and other applicable laws. ”

At an even more basic level, she adds, managers and supervisors need to know that the most casual conversation with an employee can give rise to these obligations, without the employee needing to use any magic words or, without them even knowing those protections exist.

“We also need to be revisiting our policies, she says, “and not just policies on light duty — as we learned from Young and the EEOC’s Guidance — but our attendance, accommodation, FMLA, leave, paid time off and other related policies that might contain unintentional — but nevertheless — impermissible differences in how we treat employees.

“In fact, it is not just about pregnant female employees, but it also includes policies that contain unlawful distinctions between men and women in the provision of parental leave, or caregiver policies that are narrowly defined to only apply to women,” she says.  “The EEOC has made it clear that these too will be a focus of their enforcement from here forward. “

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Top 10 Reasons to Test Adverse Impact Correctly

This one caught my eye. Not that I’ve been a big David Letterman watcher (past my bedtime), but — as Merrily Archer put it in this 101390464 -- gavel and law booksLinkedIn post — “resuscitating the Top Ten list one last time” before it’s long forgotten was intriguing.

Even more intriguing was the content of her post, Top 10 Reasons to Acquire Adverse Impact Testing Skills — starting with 10. “The [Equal Employment Opportunity Commission]’s ‘Systemic Initiative’ to eliminate ‘discriminatory barriers in hiring’ — i.e., qualification standards — [was] launched nearly 10 years ago on April 4, 2006 — it’s not too late to catch up!” …

And ending with “the No. 1 reason HR practitioners and in-house employment counsel must understand the theory behind adverse impact analyses and how to conduct them: Turning over applicant flow data — or a hiring database — to the EEOC or in discovery that you have not analyzed for adverse impact is like disclosing a packet of documents that you’ve not read — i.e., legal malpractice!!”

Archer — an employment-discrimination litigator, legal coach and creator of the EEO Legal Solutions website — is very passionate about imparting what she knows about navigating your way through the ever-more-aggressive EEOC. She began her career as a trial attorney there and knows how it works. Or make that knows how it’s supposed to work and not supposed to work.

“I feel strongly that everyone needs to know how to test for AI and how to analyze their own hiring data, especially before turning anything over to the EEOC,” she says. “I’ve seen attorneys at big law firms hand over entire databases in response to an EEOC request for information, without having a clue about what the data actually reveals.”

For anyone who may not know, adverse impact, according to this post on USLegal.com, “refers to employment practices that appear neutral but have a discriminatory effect on a protected group. ”

More specifically, it says:

“Under the EEOC guidelines, adverse impact is defined as a substantially different rate of selection in hiring, promotion or other employment decision which works to the disadvantage of members of a race, sex or ethnic group. The EEOC agencies have adopted a rule of thumb under which they will generally consider a selection rate for any race, sex or ethnic group which is less than four-fifths or 80 percent of the selection rate for the group with the highest selection rate as a substantially different rate of selection. The selection rates for males and females are compared, and the selection rates for the race and ethnic groups are compared with the selection rate of the race or ethnic group with the highest selection rate.”

Sounds pretty convoluted, doesn’t it? In reality, it’s all about the calculations, so EEO and legal consultants would be advised. That said, though, Archer’s No. 7 reason to acquire these skills is worth noting: “Using FREE online adverse-impact calculators … is EASY, even for the math-phobics — i.e., lawyers.”

The Center for Corporate Equality, in its Technical Advisory Committee Report on Best Practices in Adverse Impact Analyses, says determining whether selection, promotion and termination decisions result in adverse impact — i.e., whether “substantial differences in employment outcomes across groups exist” — is an extremely important topic for organizations, yet “there is limited guidance about the specific and proper ways in which these analyses should be conducted.”

In the EEOC’s “Uniform Guidelines on Employee Selection Procedures,” adverse impact falls under Section 4, item D.  It doesn’t offer much in the way of calculation help, but if you’re not perfectly clear on everything it says, you’d best read up, says Archer. Better yet, consider yourself warned, by her:

“[Many] defense attorneys put employers at the mercy of the EEOC’s AI analysis, which is likely statistically flawed, based on inaccurate assumptions about the hiring process and actual applicant flow, and calculated to maximize ‘shortfalls’ — i.e., the difference between the expected and actual number of hires in that minority, gender or age group — for settlement negotiations.

“Attorneys can be so myopic: ‘If they didn’t teach it in law school, it must not be relevant.’ Unfortunately, the exact opposite is true. … This area of law is still pretty nascent, but one day soon, I’m convinced that failing to audit for AI will become malpractice — it’s just part of the standard of care and protection that employers need in the systemic era.”

A few other compelling reasons to perfect your AI skills, from Archer’s Top 10:

“9. Since the EEOC shifted its enforcement focus nearly 10 years ago, ‘systemic discrimination’ has become the new phrase that PAYS at the EEOC and among employee-side lawyers.

8. The EEOC uses specific statistical tests to measure whether a challenged practice — e.g., criminal-background check, educational standard — has an ‘adverse impact’ and to calculate damages in conciliation negotiations: HR practitioners and attorneys MUST know how the database will be analyzed and what the numbers say.

2. EEOC systemic cases that have reached litigation demonstrate a high likelihood that the EEOC will [do the AI analysis of your database incorrectly] in a way that hurts [you,] the employer.”

 

 

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