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EEOC Cautions Employers That AI Selection Tools Can Have Unlawful Disparate Impact

On May 18, 2023, the EEOC issued a technical assistance guide on the use of artificial intelligence tools in employment selection procedures under Title VII, which is the federal anti-discrimination law. The guidance recognizes employers’ increasing use of AI-developed algorithmic decision-making tools in hiring, promotion, and firing. Such tools may include software designed for resume-screening, hiring, video interviewing, and employee monitoring. The EEOC guidance confirms that these types of tools, like more traditional employment decision-making procedures, must be monitored to ensure that they do not disproportionately exclude applicants or current employees based on a protected class. This would constitute unlawful “disparate impact” discrimination under Title VII unless the employer shows that the use of the tool and the use of a protected characteristic in the decision-making process is “job related and consistent with business necessity.” The EEOC specifically notes:

An employer may be responsible under Title VII for the impact of algorithmic decision-making tools even if the tools are designed or administered by a third party. Therefore, employers should select software vendors carefully and assess what steps have been or must be taken to evaluate the selection rates for individuals in protected categories.
In assessing disparate impact, the EEOC has historically relied on the general rule that the selection rate for one group is “substantially” different from that of another group if the ratio of former to latter is less than four-fifths or 80%. The EEOC will apply the same rule of thumb to AI developed selection tools. However, the guidance cautions that the four-fifths rule is not dispositive with respect to establishing or disproving disparate impact under Title VII.
The EEOC guidance encourages employers to conduct self-analyses on an ongoing basis to assess whether a selection tool has disproportionately negative effects on any protected group. Employers can then take proactive steps to revise or change the tool and avoid violating Title VII.

Lake Effect is here to answer all of your questions about employment laws, regulations, and new agency guidelines. We continue to monitor important legal and HR developments, as well as other information that could impact the workplace. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

EEOC Issues Updated “Know Your Rights” Poster

On October 19, the United States Equal Employment Opportunity Commission (EEOC) issued an updated "Know Your Rights: Workplace Discrimination Is Illegal" poster. The poster replaces the prior “EEO is the Law” poster. It summarizes federal employment laws and explains steps individuals can take if they believe they have experienced any form of prohibited discrimination. Employers must physically and/or virtually display the poster in a conspicuous location where notices to applicants and employees are usually posted. Organizations are well-advised to work with a reputable employment poster service to ensure compliance with all federal and state notice posting requirements. Your partners at Lake Effect HR & Law LLC can provide further guidance or answer specific questions.

Lake Effect is here to answer your questions about federal and state employment laws and posting requirements. We continue to monitor important legal and HR developments that affect employers. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Human Resources / Legal - 10/20/2022

COVID-19’S Continuing Workplace Impact: EEOC Revises Pandemic Guidance Again

On July 12, 2022, the EEOC issued updated COVID-19 guidance for employers, reflecting the ever-changing but persistent impact of the virus on the workplace. Key updates include the following:

Workplace COVID-19 testing
- Previously, employers could require COVID-19 testing (although it is a medical exam under the ADA) because the EEOC recognized that a person with the virus would pose a direct threat to the health of others.
- Under the revised guidance, employers may only mandate COVID-19 testing if they show that the testing is “job-related and consistent with business necessity.” (A.6.)
- Mandatory COVID-19 testing will meet the “business necessity” standard when it is consistent with current guidance from the CDC, FDA, and state and local public health authorities. Employers may also consider such factors as:
  - Community transmission rates
  - Vaccination status of employees
  - Possibility of breakthrough infections for fully vaccinated employees
  - Transmissibility of and severity of illness from current variants
  - Potential impact on the workplace if an employee enters with COVID-19 (A.6.)
- Antibody testing does not meet the ADA’s “business necessity” standard for a medical exam; employers therefore may not require such testing before allowing employees to re-enter the workplace. As the EEOC notes, an antibody test does not show whether an employee has a current infection, nor establish that an employee is immune to infection. (A.7.)
Hiring and job offers
- If an employer screens everyone for COVID-19 before allowing entry to the worksite, it can screen an applicant in the pre-offer stage who needs to be in the workplace. (C.1.)
- An employer can also screen applicants for COVID-19 symptoms after making a conditional job offer, as long as it does so for all applicants in the same job type. (C.1.)
- After an applicant has been offered a job, an employer may only withdraw that offer based upon the applicant’s positive COVID-19 test, symptoms, or exposure if: (1) the job requires an immediate start date, (2) CDC guidance recommends the person not be in proximity to others, and (3) the job requires such proximity to others, whether at the workplace or elsewhere. (C.4.)
Interactive process/ accommodation requests
- Delays in engaging in the interactive process and/or responding to employee accommodation requests are no longer acceptable unless an employer shows specific pandemic-related circumstances justified the delay. (D.17.)
Vaccinations
- Consistent with prior guidance, employers may require all employees to be vaccinated against COVID-19, subject to Title VII and the ADA’s reasonable accommodation requirements. Employers may also require proof of such vaccination. (K.1.)
- An employee’s vaccination status must be kept confidential and separated from the regular personnel file. However, an employer may share the vaccination information with other employees who need it to perform their job duties. Such employees also must keep the information confidential. (K.4.)

This is not a comprehensive list of the many issues covered in the updated COVID-19 guidance. Please reach out to your partners at Lake Effect HR & Law to ensure that your organization’s COVID-19 policies and practices are in full compliance with current EEOC guidelines. We are here to answer all of your questions about COVID-19 compliance and will continue to monitor important legal and HR developments in this area. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

COVID-19 Resources / Legal - 07/21/2022

Employers Take Note: Updates on Required Federal Forms and Reports

Form 1-9
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have extended the flexibility in complying with requirements related to Form I-9 until October 31, 2022. See our earlier blog for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

EEO-1 Component Data Report
On April 12, 2022, the EEOC announced that data collection for 2021 EEO-1 Component 1 filing is now open. Private employers with 100 or more employees must file and certify their EEO-1 Component data report(s) by May 17, 2022.

Employers can visit the EEOC’s dedicated website to access the EEO-1 Component Online Filing System and obtain other resource materials. The EEOC has also created a new Filer Support Team Message Center to answer questions and assist employers.

We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Human Resources / Legal - 04/28/2022

EEOC’s New COVID-19 Guidance: Employee Caregivers and Religious Exemptions

The EEOC recently revised its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance document to address two issues: the treatment of pandemic-related caregivers (Section I), and religious objections to the COVID-19 vaccine (Section L).

With respect to pandemic-related caregivers, referring to employees who are caring for their family members and loved ones, the new EEOC guidance confirms:

Employees do not have a right to any accommodations to handle caregiving duties under federal EEO laws. However, they may have rights under the FMLA or analogous state leave laws.
Employers need not excuse poor performance that results from caregiving duties. However, performance standards must be applied consistently to all employees.
Employers may not treat female employees better or worse because of gender-based assumptions about pandemic-related caregiving responsibilities. For example, an employer may not:
- pass women over for promotions or high-profile projects requiring overtime or travel out of fear they will need more time off;
- require pregnant workers to telework or limit contact with colleagues or customers;
- grant male employees less flexibility than females to care for family members infected by COVID-19.
Employers must require the same process for employees of any race, gender, national origin, etc. who request COVID-19 related schedule changes or leaves.
Employers may not discriminate against caregivers based upon their association with an individual with a disability. For example, an employer may not:
- refuse to hire an applicant out of fear that their caregiving responsibilities for a person at high risk of COVID-19 complications will increase healthcare costs;
- refuse an employee’s request for leave to care for a parent with long-COVID while approving other employees’ leave requests to handle other personal responsibilities.
Employers may not assume that older workers with caregiving responsibilities need special treatment or lack the stamina to perform their job while providing caregiving duties.
Employers must take steps to prevent and respond to workplace harassment or retaliation based upon an employee’s pandemic-related caregiving responsibilities.

Additional examples and details may be found in the related EEOC technical assistance document.

On the issue of religious objections to the COVID-19 vaccine, the new EEOC guidance clarifies:

Employees must tell employers that they are requesting an exception to a COVID-19 vaccine mandate based upon a sincerely held religious belief, but they need not use any “magic words.”
Objections to a COVID-19 vaccination requirement that are based on social, political, economic views, or personal preferences do not qualify as religious beliefs or justify an exemption.
The EEOC’s internal religious accommodation request form is one example of a form employers could use for employee requests. This form is just an example and not required in this format.
Employers should normally assume that a religious accommodation request is based upon a sincerely held religious belief, but it may ask for additional information if it has an objective basis for doing so (i.e., suspicious timing or inconsistent behavior), and employees must cooperate with the inquiry.
- While prior inconsistent conduct by the employee may be relevant to the question of sincerity, it is not conclusive because a person’s beliefs may change over time.
- No one factor is determinative on the question of sincerity, and employers should evaluate objections on an individual basis.
Employers should consider reasonable accommodations to vaccinations, including telework and reassignment, if they do not impose an undue hardship. If there is more than one possible accommodation, the employer may choose which one to offer.
Employers need not bear more than a minimal cost to accommodate an employee’s religious belief. Costs include both monetary costs and any burden on the employer’s business (i.e., where it would impair workplace safety, diminish the efficiency of other jobs, or cause coworkers to shoulder too much of the hazardous or burdensome work). Another relevant consideration is the number of other employees who are seeking a similar accommodation, thus resulting in a burdensome cumulative cost to the employer.
An undue hardship assessment must be based on objective information, not speculation or hypotheticals.

While serious COVID-19 infection rates are falling nation-wide, complicated issues may arise as more employees return to the physical workplace. Please reach out to your Lake Effect partners for any help you may need.

Lake Effect is here to answer your questions about COVID-19 compliance and will continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

COVID-19 Resources / Human Resources - 03/15/2022

EEOC Clarifies When COVID-19 Condition May Be a “Disability” Under the ADA

The EEOC updated its COVID-19 Technical Assistance Guidance on December 14, 2021. The Guidance’s new Subpart N discusses when COVID-19 or a post-COVID condition may qualify as an ADA covered “disability” triggering the statute’s anti-discrimination and reasonable accommodation requirements. Key points include:

Not every COVID-19 related impairment constitutes a disability under the ADA, and the determination must be made on a case-by-case basis.
Like a person with any other medical condition, a person with a COVID-19 condition may have a “disability” under the ADA in one of three ways:
1. The person has an “actual” disability: a physical or mental impairment that substantially limits a major life activity. This requires an individualized assessment of the effects of COVID-19 on the specific individual.
2. The person has a “record of” a disability: a history or record of an actual disability; or
3. The person is “regarded as” having a disability: the person is subject to an adverse action because of an actual or perceived impairment, unless the impairment is both transitory and minor.
Someone with COVID-19 who is asymptomatic or who has mild cold or flu-like symptoms that resolve in a matter of weeks is not substantially limited in a major life activity and thus does not have an “actual” disability under the ADA.
An individual with COVID-19 conditions that last or are expected to last for several months, such as ongoing neurological issues, breathing difficulties, heart palpitations, or gastrointestinal pains associated with “long COVID,” may be substantially limited in a major life activity and have an “actual” disability under the ADA. This requires an individualized assessment.
A person who has or had COVID-19 can have “record of” a disability if they have a history of symptoms that substantially limited one or more major life activities. Again, this requires an individualized assessment.
A person may be “regarded as” an individual with a disability under the ADA if they are subjected to an adverse employment action because they had non-minor symptoms of COVID-19 or minor symptoms that were expected to last more than six months.
Regardless of whether a person’s initial case of COVID-19 is itself an ADA covered “disability,” they may develop related health complications that qualify as disabilities under the ADA, such as heart inflammation, reduced brain function, or diabetes.
A person must establish they have “actual” or “record of” an ADA covered disability to be eligible for a reasonable accommodation from their employer, and the employer may ask for supporting medical documentation before granting any accommodation request.
Note that the EEOC’s COVID-19 Technical Assistance Guidance Subpart D confirms that an employer is not required to accommodate an employee without an ADA covered disability based on the disability-related needs of a family member or other person with whom they are associated.

The EEOC Technical Assistance guide includes additional details and examples. Determinations about whether an individual with a COVID-19 related condition has an ADA-covered disability or is entitled to a reasonable accommodation are fact-specific and must be made on a case-by-case basis. Contact your partners at Lake Effect for help with these complex situations.

Lake Effect is here to answer your questions about federal, state, and local regulations that impact employers across all industries. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

COVID-19 Resources / Legal - 12/15/2021

EEOC Provides Additional Guidance on Religious Objections to Vaccine Mandates

On October 25, 2021, the EEOC updated its COVID-19 Technical Assistance to specifically address religious objections to employer vaccine mandates. The update provides employers with additional guidance regarding their Title VII obligation to accommodate employees who request exceptions to vaccination requirements based upon religious beliefs. Key updates in Section L. Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates include the following:

Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement based upon a “sincerely held religious belief.” Employers should inform employees about proper procedures for requesting such an exception, and employees need not use any “magic words” to express the request.
An employer should normally assume a request for religious accommodation is based upon a sincerely held religious belief. However, if there is an objective basis for questioning the religious nature or sincerity of an employee’s belief, an employer may seek additional information. An employee who fails to cooperate with a reasonable request for additional information jeopardizes a later claim that they were improperly denied an accommodation.
Title VII protects nontraditional religious beliefs, but it does not protect social, political, or economic views or personal preferences. Objections to COVID-19 vaccination requirements that are based on these views or nonreligious concerns about the possible effects of the vaccine do not qualify as “religious beliefs” under Title VII.
An employer may consider factors bearing on an employee’s credibility when assessing the sincerity of the employee’s stated religious belief, including the consistency of the employee’s prior actions, the timing of a request, etc. The employer may also ask for an explanation of how the employee’s religious belief conflicts with the employer’s vaccination requirement.
If an employer shows it is unable to reasonably accommodate an employee’s religious beliefs without suffering “undue hardship,” it is not obligated to provide the accommodation under Title VII. Requiring the employer to bear more than a “de minimis” cost constitutes an undue hardship. Such costs can include direct monetary costs, as well as an indirect burden on the employer’s business, including the risk of spreading COVID-19 to other employees or members of the public. Undue hardship must be assessed based upon specific facts of each situation.
An employer who grants some employees a religious accommodation from a vaccine requirement for religious reasons is not required to grant the same accommodation to all employees. The determination is made on a case-by-case basis. Furthermore, an employer need not grant the religious accommodation preferred by an employee if there is another that would resolve the conflict between the vaccination requirement and the religious belief.

If an exception is granted, employers should put in place measures to protect the unvaccinated employee, other employees, and the public, as noted in Section K.6 of the EEOC guidance. Possible accommodations include wearing of face masks, frequent COVID-19 testing, change in work location or duties.

Employers who receive employee requests for exceptions to vaccination requirements based upon religious beliefs should work closely with HR and legal counsel to assess their accommodation obligations under Title VII.

Lake Effect continues to monitor important legal and HR developments, including COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

COVID-19 Resources / Legal - 10/26/2021

Increased Fines for Not Posting Employment Posters

The federal government recently increased the fines employers may face for violating federal employment law posting requirements. Going forward, the potential posting fines are:

Family and Medical Leave Act – $178
Job Safety and Health: It’s the Law – $13,653
Employee Polygraph Protection Act – $21,663
EEO is the Law – $576

Employers should also be aware that each state has its own poster requirements, most of which impose fees for failing to comply. It is important for employers to maintain an effective strategy for staying informed about the applicable local, state, and federal posting requirements. Contact your partners at Lake Effect with questions about obtaining and updating required employment posters.

Lake Effect is here to answer your questions about your posting requirements and other employment law and HR compliance matters. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Legal - 07/16/2021

HR Reporting Updates

There have been two important employer reporting updates for Human Resource practitioners.

First, the Equal Employment Opportunity Commission (EEOC) announced an extension of the deadline for submission of 2019 and 2020 EEO-1 Component 1 Data Collection to Monday, August 23, 2021. Please see Lake Effect’s prior blog on EEO-1 reporting requirements for more information.

Second, the Social Security Administration announced that it is discontinuing Employer Correction Request Notices (EDCOR), also known as “Social Security No Match Letters.” Their stated rationale for this change is “to focus on making it a better, easier, more convenient experience for employers to report wages electronically.” Please see Lake Effect’s prior blog on Social Security No Match Letters for more information.

Lake Effect is here to answer your questions about employer reporting requirements. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Human Resources - 07/12/2021

EEO-1 Reporting Requirements Resume

On April 26, 2021, the Equal Employment Opportunity Commission (EEOC) announced the reopening of the 2019 and 2020 EEO-1 Component 1 Data Collection.

As a reminder, all private sector employers with 100 or more employees, and all federal contractors with 50 or more employees meeting certain criteria must annually submit demographic workforce data, including data by race/ethnicity, sex, and job categories on the EEO-1 Component 1 report. The EEOC stayed collection of the 2019 data due to the pandemic. The deadline for submitting both the 2019 and 2020 EEO-1 Component 1 data is Monday, July 19, 2021.

The latest filing updates and additional information regarding submission of EEO-1 Component 1 Data are available at EEOCdata.org/eeo1. Employers that have received the EEO-1 notification letter should follow the directives contained therein. Eligible employers that have not received the letter may contact the EEOC’s Filer Support Team at FilerSupport@eeocdata.org for assistance. If you have questions about the EEO-1 reporting process, please reach out to any of Lake Effect’s attorneys or HR professionals.

Human Resources / Legal - 05/04/2021

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