EEOC Hearing Underscores Our Collective “Empathy Deficit”

On April 28, 2021, the Equal Employment Opportunity Commission met to hear testimony regarding the civil rights implications of the COVID 19 pandemic. In the testimony, various national experts, including Fatima Goss Graves, President and CEO, National Women's Law Center, Johnny C. Taylor, President and CEO of the Society for Human Resource Management, Monica Ramirez, Founder/President, Justice for Migrant Women, Co-founder, The Latinx House, Poderistas & Alianza Nacional de Campensinas and several others, emphasized the disproportionate suffering of certain populations throughout the pandemic. 

Reasons for the imbalance include industries where the majority of the workers are BIPOC or Asian American & Pacific Islanders (AAPI) such as food service, hospitality, and entertainment that shut down.  Other industries, , such as food processing and agriculture, according to Ms. Ramirez, simply failed to provide its workers with adequate and equitable protection.

Beyond racial and ethnic disparities, age, gender, and disabled populations were also heavily impacted.  School closures and family responsibilities exacerbated the impact on women, forcing many to have to make the choice between an income and voluntarily leaving the workforce due to caregiving responsibilities.  Frontline workers, such as nurses, certified nursing assistants, and food and grocery workers are more often jobs held by women and women of color.  These women shouldered tremendous risk, job responsibility, and fear for their own health and welfare under often overly restrictive work rules where flexible hours and attendance requirements forced them to abide by challenging work environments where others in the same organization were afforded other safer and more flexible opportunities. 

The Commission also discussed the social and cultural issues the past year has heightened.  In particular, due to unfortunate and inaccurate characterizations around the root cause of virus, there has been an increase in hate crimes specifically against the AAPI community as some people inappropriately project blame for the pandemic on them.  The current divisiveness in the country provides kindling to this and other emotionally charged issues to flame up at work.  Heated debates on requiring vaccination and/or face coverings, providing adequate social distancing, and navigating anxiety and fear around workers’ status spill over into the workplace and threaten to poison the culture.

Mr. Taylor underscored the cultural challenges, pointing out that we have another serious crisis in our country – one that predates the pandemic.  He stated that “our society, and our workplaces in particular, had an empathy deficit. Empathy doesn’t demand that we all agree; empathy enables us to perceive and consider someone else’s point of view.”  He went on to emphasize that “It is important for work, workers, and the workplace to exercise the muscle of empathy to assist in mitigating the pandemic’s lasting implications in the workplace. Empathy will be critical to economic and business recovery because empathetic workplace cultures retain the best people and enjoy high productivity.”  

As a country, we have tried for decades to put in legal and regulatory structures to foster more equitable and empathetic workplaces. But it can't be done by laws or accomplished through regulation.  If it could, we would’ve seen better progress than we have. It has to be accomplished through a commitment to changing behaviors.

For instance, when someone makes an inappropriate comment or joke at the expense of another or hassle someone over their vaccination or mask choice, they lack empathy.  What elements of the culture encourage that behavior or at least give the impression that it is acceptable?  What are the reactions and consequences?  An empathetic work culture gathers concrete facts and data to support decision making, understands, values, and upholds what is right, demonstrates model behavior and addresses when choices and behaviors are wrong.

A more serious example recently occurred at a private school in Miami.  The co-founder of the Centner Academy, a private school in Miami, FL sent teachers an email stating that “We cannot allow recently vaccinated people to be near our students until more information is known,” and later communicated misinformation about the vaccine’s purported impact on fertility and menstruation of women and girls.  Teachers were given an option.  If they were vaccinated already, they could remain employed only if they continued to teach in a remote manner.  Were the teacher not currently vaccinated, they could teach in person. This particular employer has now opened themselves up to significant EEOC action on the basis of falsehoods and misinformation, bias, and a lack of empathy.

Employers are facing unprecedented risk for civil rights and equal employment opportunity matters to surface in their organizations due to the disproportionate impact on certain communities and the empathy deficit.  All of the witnesses urged the Commission to take quick action to support employers that feel as if that this is an unwinnable and untenable.  Most employers want to do the right thing.  They need guidance to ensure that they are acting in a way that aligns with the Commission’s policies, provides a layer of protection for them in the face of a claim, and create more empathetic workplaces to attract and retain a workforce that is already stretched thin. 

Employers and employees both still need to move forward while the Commission goes about its deliberation and work.  The following interim strategies could be considered and explored with individuals’ and companies’ advisors:

 For employees and those returning to the labor force:

Commit to Stepping Up Your Own Empathy:  We can all do better.  We need to listen, not merely hear.  We can pause before answering or knee-jerk-reacting.  Let’s consider the other person’s point of view or what they could be going through.  Take time to ask questions that will help build genuine understanding and resist temptations to immediately assume “I'm right. You're wrong,” or it’s a win-lose situation.  We can work for the win-win with colleagues, customers, and others. Lastly, we can demonstrate empathy by supporting colleagues in conversations, articulating agreement and support for their position when appropriate and concern when we witness unfortunate behavior. 

Educate Yourself:   At the EEOC hearing, there was a great deal of discussion around the risks of retaliation toward individuals that raise their voice and call out inappropriate and biased behavior.  Claims of retaliation unsurprisingly declined over the last year, as people feared for their jobs and recognized that a bad job is far superior to no job. This is particularly true in those houses where the pandemic disproportionately impacted the family.  Reluctance to defend one's own right to equal employment opportunity and work conditions is likely to continue for two reasons. One: the job security element, and Two: employees may not fully understand what their rights for protection from retaliation are. Expanding awareness of rights and protections is crucial to victims of discrimination and bias.  Employees need access to resources in order to build their own understanding.

Several witnesses at the hearing noted that employees may have difficulty accessing local EEOC resources or be reluctant to engage with a governmental agency to learn about their rights and protections.  An alternative available to these individuals is to connect with trusted community-based programs.  Accordingly, the EEOC was advised to expand their outreach to local community groups, such as Head Start programs, food pantries, houses of worship and other community leaders to engage and share information, enlist their help to educate community members about what constitutes retaliation, their rights are under the EEOC, and what the claim process entails.

Advocate for Yourself: Under the EEOC guidelines, employers have a responsibility to provide a safe work environment for its employees. Most HR professional are working hard to identify tools, policies, and procedures to improve safety and worker health.  But employers aren’t mind-readers.  Employee should articulate needs for safety precautions consistent with prevailing Centers for Disease Control and other guidance as well as reasonable accommodations in the instance of disability or caregiving responsibilities.  (The EEOC has issued guidance on employer best practices for workers with caregiving responsibilities.) 

Provide Clarity:  Employees should articulate what their needs are, or are not in, an attempt to give and receive empathetic support.  As humans, it’s easy for us all to make assumptions. Leaders, managers, and recruiters may presume that someone needs certain accommodations in order to do their job effectively and safely. Conversely, they may fail to recognize that there needs to be reasonable accommodations or flexibility due to issues surrounding the pandemic. For example, a hiring manager, or operating manager may assume that because an employee has small or school aged children, she may need more accommodation around her schedule. She may not or he may.

When explaining a lapse of employment, many recruiters and their automated HR systems assume a lapse of employment is a failure on the part of the employee, which in the circumstances of the pandemic, may not be the case. Job candidates should proactively advocate for themselves and, in the case of an employment lapse, be clear in terms of what the temporary pressures were that prompted leaving employment, and how those circumstances have been ready remedied. Help the prospective employer understand that you, as a candidate. are willing, able, and available to do the work. 

For employers, there are a myriad of policy, legal and cultural elements to navigate.  With the EEOC working to prepare its response to the hearing, employers should focus on:

Fostering Greater Empathy: Given the collective fatigue and stress the pandemic has wrought, employers play a critical role in leading by example when it comes to creating, fostering, and nurturing empathetic cultures.  Leaders should reflect on their opportunities to extend greater understanding and compassion for what coworkers are experiencing in their work, work environment, and pandemic-added pressures.  For example, consider whether restrictive scheduling or attendance policies should be modified to allow greater flexibility and retention of staff.  Acknowledge and respect the fear and anxiety that employees may be dealing with as it relates to coming to or returning to work.  Do what’s right for the overall and long-term good, not merely short-term profits. 

Mr. Taylor’s written testimony points out “The key to bringing women back to the workplace is flexibility. Flexibility is not limited to working from home full time. Often, the accommodations women need are not accommodations that cost money; flexibility is not a commodity. Rather, flexibility requires empathy.

The EEOC has already published both “Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities” and a list of “Employer Best Practices for Workers with Caregiving Responsibilities,” which the witnesses urged the Commission to update quickly to provide employers and employees much needed direction. 

Safeguard Employee Health & Safety:  While the vaccination rates in the US are climbing, the pandemic is not over.  There are multiple variants of the virus circulating and we have not reached the level of vaccination to provide “herd immunity” by which the virus would die out.  Employers are responsible for the health and safety conditions of the work environment, regardless of the nature of the work or individuals performing it. 

Employers should review and, if necessary, update their policies, procedures, protocols, and physical work arrangements to ensure alignment with prevailing guidelines to best guard against the risk of EEOC-related claims of discrimination in the care and safety of employees.

Safeguarding the Company and Employees from Harassment & Retaliation:  The empathy deficit fuels the fire and risk of bickering and harassment.  As the witnesses testified at the hearing, there has been an increase in hate crimes and likely and under-reporting of harassment claims.  Thoughtful and well-crafted communications, based on facts and publicly accepted guidance, will serve employers well when discussing decisions around vaccination, mask, and social distancing requirements.  Employers must help managers and coworkers bridge diverse opinions on such matters and the need for a safe work environment.  Training is only one piece and just the starting point.  Employers should implement measure to reinforce and demonstrate more empathetic leadership and cultures.

According to the EEOC, “retaliation is the most frequently alleged basis of discrimination and the most common discrimination finding in federal sector cases.”  Employers can not punish an employee for making a claim to the EEOC, notifying management of harassment, requesting reasonable accommodation, and many other reasons. 

Retaliation comes in many forms. From a social psychology perspective, retaliation occurs when one person, usually a person in a position of power, perceives unfair treatment or outcomes, usually due to some interpersonal conflict.  That person wants to rebalance the score, believes that they have the right to do so, and takes it into their own hands. 

How people perceive an organization’s culture, its ethos of right and wrong, and the prevalence of opportunities for retaliation are crucial elements for curbing an individual’s temptation to retaliate. For example, a culture that allows for bullying, intimidation, and harassment is more likely to risk retaliatory behaviors.

In addition to the strategies above, employers can expand and reinforce the importance of prudent and empathetic reactions to grievances raised by individuals by:

  • Listening to the grievance in an empathetic way and gathering the facts around circumstances
  • Providing appropriate privacy and confidentiality in the discussion and investigations of claims
  • Treating the individual making the claim with dignity and respect and not isolating them or curbing their involvement in roles, responsibilities, and activities
  • Avoiding reactive or threatening behaviors toward the person making the claim or others involved in the investigation

Regardless of what actions the EEOC undertakes to provide the needed guidance and direction, all employers and employees play a role in creating empathetic work environments.  It’s the ultimate win-win.  It’s good for the business as it will attract and retain a workforce that may be more cohesive and productive.  It’s good for the individuals in the workforce because respect, kindness and cooperation are more engrained in the culture and behavior.

The best next step?  Do your part.  Be a good person.  Don’t be a jerk. Build a life and culture of respect.  Start with empathy.




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