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September is coming, and a chilly wind is blowing for employers with more than 100 employees. By Sept. 30, 2019, employers must submit EEO-1 Component 2 data, employee wage and hour data organized by job category, gender, race, and ethnicity, for calendar years 2017 and 2018 to the Equal Employment Opportunity Commission (EEOC). A 2017 moratorium on the EEOC’s collection of employee pay data was lifted in a recent court order that requires the EEOC to collect employee pay data by the end of September. While the EEOC has not yet set a firm date for when employers will be able to submit EEO-1 Component 2 data, the EEOC expects the EEO-1 Component 2 Survey to open in mid-July 2019.

Because the EEOC is not currently accepting Component 2 data, it is unclear what the EEO-1 Component 2 Survey will look like. However, the EEO-1 Component 2 form is expected to require employers to submit summary pay data for all employees, including the total number of full and part-time employees employed during the year, in each of 12 pay bands listed for each job category identified on the EEO-1 form. The pay data submitted is to be based on employee W-2 forms. The form is expected to be designed so that employers may simply count and report the number of employees in each pay band. The form is not expected to require employers to submit individual pay or salary data. Additionally, the form is expected to require employers to submit the number of hours worked during the year by employees in each pay band.

To read the full GT Alert, click here.

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Artificial Intelligence (AI) and automated employment decision tools (AEDT) can be useful for employers in the hiring process. They may be used for myriad tasks, from sifting through employment applications to predicting applicant or employee honesty. Their use, however, comes with a specific legal risk: they may create a disparate impact, as we examine further below.

Human Biases May Be Coded into AI

AI tools are subject to human limitations. This is because they are coded by humans, and humans are subject to biases both conscious and unconscious (or “implicit”). As a result, a tool may inadvertently prefer candidates from certain geographic locations (which may exclude certain racial groups), favor male candidates over female candidates (if, for example, the tool is using information from successful applicants in a historically male-dominated position), or incorrectly evaluate the facial expressions of neurodiverse individuals. In short, without safeguards, the risk of bias in AI is real.

Intent to Discriminate Is Irrelevant Against a Claim that an Employer’s AI Tool Had an Adverse Impact on a Group

Various discrimination laws forbid an employer from using selection procedures that, while facially neutral, nonetheless have the effect of disproportionately excluding or affecting people with a certain protected characteristic (e.g., race, religion, gender, sexual orientation, disability, and national origin), a phenomenon known as “disparate impact.” If a selection tool has an adverse disparate impact on any group, the employer may be liable even absent an intent to discriminate. Griggs v. Duke Power Co., 401 U.S. 424 (1971).

The EEOC Issued Guidance to Help Employers Navigate AI Use

In May of 2023, the Equal Employment Opportunity Commission (EEOC) issued guidance concerning employer use of AI tools. That guidance made one thing clear: in the EEOC’s view, employers may be held responsible for using an AI selection tool that has an adverse or disparate impact against a person in a protected class. This is true even if the tool – and its implicit bias – is designed or administered by another company, such as a software developer.

States Have Introduced Legislation to Address Similar Issues With AI

Legislation addressing the risk of implicit discrimination in AI decision-making has popped up across the country. Illinois enacted the Artificial Intelligence Video Interview Act (820 ILCS 42) in 2020, Maryland ratified a prohibition against the use of facial recognition services in labor and employment (H.B. 1202) in 2020, Washington D.C. introduced the Stop Discrimination by Algorithms Act (B24-0558) in 2021 (died in chamber), Texas approved H.B. 2060 establishing an Artificial Intelligence Advisory Council in June 2023, and New York City’s Local Law 144 (NYC 144) passed and went into effect July 5, 2023.

As discussed in recent GT thought leadership (seeblog post and GT Alert), NYC 144 and its progeny broadly regulate the use of AEDT by employers and employment agencies in New York City. Employers are now required to conduct and publicly report the findings of annual bias audits for any AEDT used to assist with employment decisions. Employers must also disclose the use of AEDTs to all impacted resident NYC job applicants. NYC 144 provides a broad definition for AEDT that may be instructive for employers wondering which technology may fall under the purview of such legislation: in NYC AEDT comprises any process that is “derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making.” Regulated AEDT include those that automate, support, substantially assist, or replace discretionary decision-making processes of human beings that can materially impact natural persons. The law does not include commonplace computer systems or applications like junk email filters, firewalls, antivirus software, or compilations of data. Violations of NYC 144 can result in civil penalties of $375 to $1,500 per infraction.

In January 2023, California entered the arena with the introduction of the automated decision tools bill (AB 331). California’s Assembly Member Bauer-Kahan introduced AB 331 to address concerns about discrimination stemming from AI decision-making across a wide berth of industries. Influenced by the Blueprint for an AI Bill of Rights, AB 331 prohibits employment discrimination resulting from AI decision-making tools and creates a right of civil action for violations. AB 331 requires California employers to inform any person who may be impacted by a “consequential decision” made by an AI AEDT of that fact and allow those persons to opt out of determinative AEDT processes where feasible. Employers subject to AB 331 would be required to perform annual impact assessments for any AEDT used, explain the purpose of the tool, its benefits, and how it is deployed. Failure to comply with the impact assessment requirement could result in a fine of up to $10,000.

If passed, AB 331 would go into effect in January 2026. The bill remains active in the committee process – held under submission as of May 18, 2023.

Employer Takeaway

These recent trends suggest that employers utilizing AI to make employment-related decisions take extra care when deciding whether and which AI technology to use. Employers may also want to engage with vendors to determine if they are taking adequate steps to prevent implicit bias and discrimination unrelated to the job or business necessity, keeping in mind they may be found liable if the technology results in discriminatory employment decisions. It may be prudent for employers to proactively implement policies to regularly review AEDT technology and AI decision-making, just as they would for human employees.

Much of the business community, along with the rest of the country, was taken by surprise by the CDC guidance regarding mask wearing issued on May 13, 2021. It was unclear how the new guidance, subsequently adopted in many states, would impact public-facing private businesses, which under the guidance clearly had the option to apply different rules in their workplaces, but which faced clear practical problems in doing so in the form of pushback (verbal or physical) from customers who were told by the government that they could forego mask wearing. However, competing concerns about safety of employees, particularly in workforces with low immunization rates, have led to demands from the business community for guidance. In partial response, on May 28, 2021, the EEOC updated its guidance concerning the application of equal employment opportunity (EEO) laws to pandemic-related employment policies.

Continue reading the full GT Alert.

The Equal Employment Opportunity Commission (EEOC) recently issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, which goes some distance in creating potential liability for discrimination by employers for their carte blanche use of criminal record exclusions.

See our GT Alert — Arrest and Conviction Records in Employment Decisions: EEOC Issues Enforcement Guidance and Best Practices — for more information.

The U.S. Equal Employment Opportunity Commission (EEOC) final rule implementing the Pregnant Workers Fairness Act (PWFA) went into effect June 18, 2024, but not without legal challenge.

The final rule, covered in a previous GT Alert, requires employers to offer reasonable workplace accommodations to workers who are pregnant or have a condition related to pregnancy or childbirth. The rule includes an exception for employers if the requested accommodation would cause the business an undue hardship.

Continue reading the full GT Alert.

The U.S. Equal Employment Opportunity Commission (EEOC) released its long-awaited proposed guidance on workplace harassment, which includes advice to employers concerning online misconduct, LGBTQ rights, and abortion issues. The guidance is open for public comment until Nov. 1, 2023. This is the first guidance the EEOC has issued on harassment since its 1999 “Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors.” 

Continue reading the full GT Alert.

On Aug. 9, 2023, a tutoring company agreed to pay $365,000 to settle an artificial intelligence (AI) lawsuit with the Equal Employment Opportunity Commission (EEOC). The settlement comes on the heels of multiple EEOC warnings to employers about potential discrimination associated with the use of AI for hiring and workplace decisions.

Continue reading the full GT Alert.

The federal Pregnant Workers Fairness Act (PWFA or the Act) will take effect June 27, 2023. The Act requires “covered employers” to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” The Equal Employment Opportunity Commission (EEOC) will start accepting PWFA charges June 27, 2023. Charges submitted to the EEOC must be based on events that occurred on or after June 27, 2023.

Continue reading the full GT Alert.

The Americans with Disabilities Act (ADA) was signed into law in 1990, and Title I of the ADA provides a framework for ensuring that people with disabilities are treated fairly in the workplace and have access to employment opportunities. The Equal Employment Opportunity Commission (EEOC) – the federal agency charged with enforcing the ADA – occasionally issues guidance documents addressing particular disabilities in the workplace, such as depression, blindness, and cancer, and recently issued new guidance relating to employers’ responsibilities when dealing with hearing disabilities in the workplace. Given that approximately 15% of Americans report hearing limitations, the importance of these guidelines should not be taken lightly.

Hearing conditions as disabilities under the ADA

People with hearing disabilities are protected under the ADA if “they can show they are substantially limited in hearing or another major life activity” (or if they have a record of a substantially limiting impairment or are regarded as having such an impairment). The EEOC explains that such a determination must be made by ignoring “the positive effects of any mitigating measure that is used” such as hearing aids or cochlear implants. In other words, if an employee’s hearing is substantially limited without the use of an implant or aid, that employee is considered disabled under the ADA and their use of an implant or aid does not change this disability status.

Obtaining and using an employee’s medical information

Per the EEOC’s guidance, whether an employer can ask applicants or employees questions relating to their hearing depends on timing.

  • Pre-offer job applicants: Employers may not ask job applicants if they have a hearing condition or require a medical exam, even if the condition is obvious. However, employers may ask questions relating to an applicant’s ability to perform the essential functions of the job, with or without a reasonable accommodation, such as whether the applicant can work in a noisy, fast-paced work environment. Only if the applicant’s impairment is obvious or the applicant has voluntarily disclosed a hearing impairment, and the employer reasonably believes the applicant will require an accommodation (either to complete the application process or perform the job) may an employer ask whether the applicant will need an accommodation and, if so, what type.
  • Post-offer job applicants: After a job offer is made the employer may only ask questions about the applicant’s health and require a medical exam if all applicants are asked the same questions and are required to take the same examination. If the applicant discloses a hearing impairment, the employer may ask follow-up questions, such as what hearing limitations the individual has and what accommodation(s) the applicant may need to perform the job. The employer may not withdraw an offer from an applicant with a hearing disability unless the individual’s performance of the job would pose a direct threat to the health and safety of the applicant or others, and this threat cannot be eliminated or reduced through reasonable accommodation.
  • Existing employees: An employer may ask hearing or disability-related questions when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes the problems are related to a medical condition. If the performance problems cannot reasonably be attributed to a problem with the employee’s hearing, the employer may not ask for medical information and must handle the matter pursuant to the employer’s existing policies. An employer may also ask about a hearing condition if it has a reasonable belief that the employee will be unable to safely perform the job because of it.

Regarding employee medical issues, employers should not only exercise caution as to what information they seek from employees but also safeguard that information consistent with their legal obligations related to employees’ private information. The EEOC’s guidance provides that an employer must keep confidential any medical information it learns about an employee. However, there may be instances where limited disclosures are acceptable, such as (1) to supervisors and managers where necessary to provide a reasonable accommodation; (2) to first aid and safety personnel where an employee requires emergency treatment or other assistance; (3) to assist individuals investigating compliance with the ADA or similar state and local laws; or (4) where needed for workers’ compensation or insurance purposes.

Reasonable accommodations

Employers are required to provide reasonable accommodations to enable persons with hearing disabilities to perform their jobs or to participate in the job application process. Reasonable accommodations can include, among other examples, the use of sign language interpreters, assistive listening devices, CART (computer-aided real-time translation), and work-area adjustments such as a desk away from a noisy area. Online meeting services such as Zoom and Microsoft Teams offer options for creating closed captioning in meetings and webinars.

Accommodations must be provided, after engaging in an interactive process with the individual, as long as doing so would not result in an undue hardship (a significant difficulty or expense) to the employer. However, employers are not required to eliminate essential functions of a job or provide employees with personal use items as a reasonable accommodation. Moreover, employers are not necessarily required to provide the employee’s first choice of reasonable accommodation if multiple accommodations would be effective.

Safety and prohibitions against harassment, retaliation, and interference

While employee safety should be paramount, including the safety of persons with hearing disabilities, the EEOC’s guidance provides “an employer should be careful not to act on the basis of myths, fears, or stereotypes about hearing conditions.” Safety assessments should be evaluated on an individual basis, focusing on the “direct threat” posed by the employee, which includes assessing the duration of the potential risk, nature and severity of the potential harm, likelihood such harm may occur, and imminence of such harm. Employers also should consider whether any risk can be reduced or eliminated by reasonable accommodation.

Similarly, the ADA prohibits harassment or offensive conduct based on an individual’s hearing disability, retaliation against an individual for requesting a reasonable accommodation, or interference with an individual’s exercise of rights under the ADA. Employers should remain vigilant in their training and policies to prevent such behavior in the workplace.

Going forward

Employers should ensure that anyone involved in hiring and management is aware of the ADA requirements and EEOC guidance related to hearing disabilities in the workplace, as well as any additional obligations that might exist under state and local laws. This includes human resources and recruiting teams as well as day-to-day managers likely to interact with employees with hearing disabilities on a daily basis. Failure to prevent discrimination and harassment may subject an employer to an EEOC investigation as well as a civil lawsuit for compensatory and punitive damages.

On Oct. 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued guidance and updated the same on Oct. 28, to assist employers who receive requests for religious accommodations from job applicants and employees regarding Coronavirus Disease 2019 (COVID-19) vaccine mandates. This GT Alert provides considerations for employers when evaluating such a request for a religious accommodation.

Click here to continue reading the full GT Alert.