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.

NLRB Scrutiny Requires Review of Employee Agreements

Based upon the NLRB’s recent decision in McLaren Macomb (February 23, 2023) and related General Counsel Memorandum 23-05 (March 22, 2023), employers (whether unionized or not) should review severance and other employment agreements containing confidentiality, non-disclosure, or non-disparagement provisions to ensure compliance with the Board’s restrictive new standards.

In McLaren Macomb, the NLRB examined severance agreements offered to 11 employees who were permanently furloughed from a Michigan hospital. The NLRB concluded that offering employees severance agreements that contained broad confidentiality, non-disclosure, and non-disparagement provisions unlawfully interfered with their Section 7 rights under the National Labor Relations Act (NLRA). The Board reasoned that such provisions could limit employees’ rights to communicate with other employees, union representatives, and/or NLRB agents regarding workplace issues and labor disputes, rights which are central to the protections of the NLRA.

In General Counsel Memorandum 23-05, NLRB General Counsel Abruzzo provided additional guidance on the McLaren Macomb decision. The General Counsel’s memo confirmed that whether an employee actually signs a severance agreement containing overly broad confidentiality and/or non-disparagement provisions is irrelevant. The employer violates the NLRA simply by presenting employees with such an agreement. In addition, the memo clarified that the McLaren Macomb decision is retroactive and thus applies to agreements presented to employees before February 2023, although such actions are normally subject to a 6-month statute of limitations. The memo also states that the McLaren Macomb standard is not limited to provisions contained in severance agreements, but rather applies to any employer agreement or communication that implicates employees’ Section 7 rights. These would likely include free-standing confidentiality and non-disclosure agreements and could even include non-compete or non-solicit provisions in certain scenarios.

On the heels of this recent NLRB activity, employers are well-advised to work with employment counsel to review separation agreements, as well as other free-standing agreements and communications with employees. Employers should carefully consider whether confidentiality, non-disclosure, or non-disparagement provisions are truly necessary to protect their business interests. If deemed necessary, they will need to be extremely narrowly tailored to meet the NLRB’s stringent new standard. Your partners at Lake Effect are ready to help you with this important review process.

Lake Effect is here to answer your questions about compliance with federal, state, and local laws as they related to all employment agreements. 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.

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.

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.

Biden Administration Bans Arbitration of Workplace Sexual Harassment Claims

On March 4, 2022, President Biden signed ithe “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,” a new law banning mandatory arbitration for workplace sexual assault and sexual harassment claims. Arbitration is a form of dispute resolution outside of the court system. Many employment contracts broadly require employees to resolve claims against employers in arbitration.

This legislation makes language in existing and future employment contracts related to compulsory arbitration of sexual harassment and sexual assault claims unenforceable, at the option of the person bringing the claim. The law does not impact arbitration of other types of employment disputes, and applies to claims and disputes going forward, not past or pending claims. A person bringing a workplace sexual harassment or assault claim may still choose to resolve the claim through arbitration, or they may elect an alternative forum such as mediation, administrative agency proceedings, and/or state or federal court.

In light of this new law, employers should consider the following steps:

  • Review Employment agreements
    Employers should review employment agreements for language about mandatory arbitration. We can assist in this review.
  • Evaluate voluntary mediation services
    Nothing in the new legislature prohibits an employee from resolving disputes outside of court voluntarily. If disputes arise in the workplace, mediation is often a good option for all parties. Mediation is voluntary, confidential, and self-determined, meaning the parties come up with solutions to resolve the dispute. If you would like to learn more about Lake Effect’s mediation services, please contact us.
  • Reiterate your commitment to creating a harassment-free environment 
    Kindness is part of our mission and core values at Lake Effect. Our passion is helping employers cultivate kind environments, where workplace harassment has no place. Contact us to assist with leadership training, employee training, workshops, coaching, and other options that may fit your needs.

Lake Effect is here to answer your questions about compliant employment agreements and workplace dispute resolution. 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.

CDC’s Latest Guidance: To Mask or Not Mask

On February 25, 2022 the CDC updated its masking guidance. The new recommendations are customized according to community risk. Each county across the US is designated “high,” “medium,” or “low” risk.

  • “High” risk counties: residents are advised to mask indoors in public.
  • “Medium” risk counties: residents should mask in some situations, including in high risk settings (for example in schools, indoor crowds, and congregate settings), if around individuals who are at high risk of severe illness, or if an individual’s doctor recommends masking.
  • “Low” risk counties: residents need not mask.

Regardless of risk designation, the CDC recommends testing if symptomatic, vaccinating if eligible, and improving ventilation in indoor settings if possible.

CDC guidance is not mandatory, but it may assist employers as they establish and implement their own COVID related safety policies for the workplace. Following CDC guidance may also assist in demonstrating compliance with OSHA’s “general duty” clause, which requires all employers to provide a workplace free from known health and safety hazards.

Each employer will be faced with challenging decisions about whether and how to implement the new CDC masking guidelines into workplace safety policies. Soliciting input from your leadership team and employees may be helpful as you continue to manage changes brought about by the COVID-19 pandemic. Renew your commitment to a respectful workplace and encourage your employees to treat one another accordingly during these times of transition. If you need help navigating these changes, please reach out to any of the Lake Effect attorneys or HR professionals.

Lake Effect is here to answer your questions about COVID protocols and mitigation in the workplace. 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.

Lake Effect HR & Law, LLC
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