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One of the hardest struggles faced by parents today is finding the perfect balance between working and raising children.  Over the last century, women have entered the workforce at record breaking rates. As a result, the rapid engagement of mothers in the labor force has not only contributed to the country’s efficiency and economic growth but has also presented new challenges for employers and working women.

Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating on the basis of sex. This includes protection against sex-based discrimination for workers with caregiving responsibilities, such as working mothers. Despite a progressive shift in the workforce, women are still impacted by discriminatory practices that disproportionately affect working mothers.

Title VII does not prohibit discrimination based on parental or caregiver status. As a result, an employer does not violate Title VII if it treats working mothers and working fathers differently than childless workers. However, an employer will be found to have violated Title VII if working mothers are subjected to disparate treatment that working fathers are not.

Although women typically assume a majority of the parental responsibilities in most families, Title VII does not allow employers to operate on the belief that a female worker is less dependable than a male employee.  Unfortunately, working mothers are often forced to combat negative stereotypes as some employers hold outdated beliefs that caregiving mothers are unable to demonstrate the necessary devotion to their jobs and adequately care for their children. Often, women are not hired or are denied promotions because it is believed that mothers, particularly of young children, would neglect their jobs in favor of their presumed childcare responsibilities. As a result, discrimination against working mothers can take the form of women not being hired, biased treatment in the workplace, a lack of training opportunities, unequal pay, the denial of promotions or interviews, or being recommended for lower salaried positions.

According to the Equal Employment Opportunities Commission (EEOC), relevant evidence in charges alleging disparate treatment of female caregivers may include:

• Whether a potential employer asked female applicants, but not male applicants, if they were marred, had young children, or about their childcare arrangements;
• Whether stereotypical comments were made about working mothers or pregnant employees;
• Whether an employer assigned a working or pregnant mother to a less prestigious or lower paid position;
• Whether there were changes in an employer’s assessment of a female employee’s performance after it was discovered that she had children or was expecting;
• Whether statistical evidence displayed clear disparate treatment against pregnant employees or working mothers.

Despite the legal protections afforded to women under Title VII, sex discrimination persists. Discrimination against working mothers is both unethical and illegal.  Therefore, it is important for women who believe they have been subjected to sex discrimination to be aware of their rights and seek legal assistance if necessary. It is also important for employers to be aware of the implicit biases that can lead to discriminatory employment decisions.

Employers and employees should consult experienced legal counsel to be fully advised of their rights and obligations under the law. If you or a close friend or family member needs assistance in this area, consult the Employment Team at the Finney Law Firm.

Over the past year, we’ve seen an increased focus from federal regulators on limiting the scope of restrictive covenants in employment agreements such as non-compete, non-disclosure, and confidentiality agreements:

• In January of 2023, the Federal Trade Commission issued a Notice of Proposed Rulemaking that would ban employers from imposing non-competes upon employees in most instances. It is anticipated that the FTC will vote on this proposal in April of this year.
• In February of 2023, the National Labor Relations Board (“NLRB”) issued its McLaren Macomb decision (372 NLRB No. 58 (2023)) finding that offering employees severance agreements with broad confidentiality and non-disparagement provisions violated the National Labor Relations Act (“NLRA”).
• In March of 2023, the NLRB’s General Counsel issued a Memorandum offering Guidance in Response to Inquiries about the McLaren Macomb Decision which included the following question and answer:

“How does this decision affect other employer communications with employees, such as pre-employment or offer letters?

Based on extant Board law, overly broad provisions in any employer communication to employees that tend to interfere with, restrain or coerce employees’ exercise of Section 7 rights would be unlawful if not narrowly tailored to address a special circumstance justifying impingement on workers rights. “

• In May of 2023, the NLRB’s General Counsel issued a Memorandum to its Regional Directors, Officers-in-Charge, and Resident Officers, opining that non-compete provisions in employment agreements violate the NLRA except in limited circumstances. (This memorandum does not currently have the force of law.)
• In September of 2023, the Equal Employment Opportunity Commission (“EEOC”) released its Strategic Enforcement Plan, outlining six subject matter priorities, including “Preserving Access to the Legal System,” including a focus on “overly broad waivers, releases, non-disclosure agreements, or non-disparagement Agreements”

What does this mean for Employers/Employees?

These developments evidence an increasing scrutiny of employers’ ability to restrict employees’ activities in these areas.  This means that employers should take a close look at onboarding and severance documents and policies to make sure they are narrowly tailored to specific circumstances and with this new focus in mind.  And it means that employees should carefully review employment documents and attempt to resolve any ambiguities or concerns before they sign the documents and before any issues arise.

Further, given that the FTC’s proposed rulemaking has not been finalized, and NLRB memoranda and EEOC enforcement plans define regulatory focus but are not law, it is anticipated that this area of the law will continue to evolve over time.  Employers and employees should make sure they stay up-to-date on any new developments, and that they consult experienced legal counsel to be fully advised of their rights and obligations under the law.

According to a 2022 study by the Society for Human Resource Management, nearly one in four organizations reported using automation or AI to support HR-related activities.  According to the study, while AI is being used in a myriad of employment decisions, the greatest use by far is in recruiting and hiring.

With this rise in the use of AI in employment decisions, regulators and law makers are turning their attention to ensuring that AI is used in a fair and responsible way that does not violate any laws aimed at protecting the rights of employees.

The EEOC is expanding its focus on AI in 2024.

As was noted in last week’s “Maintaining a Positive and Productive Workplace in 2024” blog post, one of the U.S. Equal Employment Opportunity Commission’s (“EEOC”) focuses announced in its Strategic Enforcement Plan for 2024 to 2028 is the use of AI in recruitment and hiring.  The concern is that the use of AI could intentionally or unintentionally lead to discriminatory practices in recruitment or hiring.  For example, if an AI algorithm was programed to screen out applicants over a certain age, that could constitute intentional discrimination.  Or, even if an algorithm was carefully programmed to avoid any discriminatory screening factors, it still might inadvertently screen out, for example, those with disabilities and therefore have an unlawful, discriminatory disparate impact.

This 2024 focus is a continuation of the EEOC’s scrutiny of and guidance surrounding use of AI in employment decisions.  In 2021, the EEOC launched its Artificial Intelligence and Algorithmic Fairness Initiative, aimed at ensuring that the use of AI and other emerging technologies used in hiring and other employment decisions comply with federal civil rights laws.

In May of last year, the EEOC released a technical assistance document, “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964.”  This document includes guidance in the form of questions and answers, including:

“3.     Is an employer responsible under Title VII for its use of algorithmic decision-making tools even if the tools are designed or administered by another entity, such as a software vendor?

In many cases, yes. For example, if an employer administers a selection procedure, it may be responsible under Title VII if the procedure discriminates on a basis prohibited by Title VII, even if the test was developed by an outside vendor. …”

Law makers are beginning to propose legislation regarding the use of AI in employment decisions.

In July of 2023, U.S. Senators Bob Casey (D-PA) and Brian Schatz (D-HI) U.S. Senator Bob Casey introduced the No Robot Bosses Act aimed at protecting and empowering workers by preventing employers from relying exclusively on artificial intelligence in making employment decisions. On July 20, 2023 the bill was referred to the Committee on Health, Education, Labor, and Pensions and no further action has been taken on it at this time.

Illinois and New York City have implemented legislation governing the use of AI in employment decisions, and more states and cities are proposing such legislation.  For a comprehensive look at 2023 state legislation proposed on a myriad of topics related to AI see the National Conference of State Legislators’ summary on Artificial Intelligence 2023 Legislation.

What does this mean for the use of AI in employment decisions?

The use of AI saves time and money and is a valuable tool for many companies.  No doubt the new and even more efficient and effective methods of using AI will expand over time and bring great benefits to the workplace.  It is important, however, to consider not only the benefits and efficiencies of using AI, but also the potential pitfalls, how to avoid them, and how to craft fair, unbiased, efficient, and effective AI employment tools.

Some practical advice to companies to ensure that their use of AI promotes a positive, productive, and lawful workplace includes:

• Carefully select your AI vendor and inquire into the vendor’s knowledge regarding and practices for avoiding discriminatory selections processes.
• Assess each AI tool to make sure it does not include any discriminatory selection factors.
• Assess whether the AI selection procedure has an adverse impact on a particular protected group.
• Continue to assess your AI tools on an ongoing basis.
• Carefully determine which positions or decisions are appropriate for the use of AI tools and which are not.
• Do not make employment decisions solely based on AI. Have qualified personnel review the results of the AI process.

As this emerging area of the law develops, it will be important to stay up-to-date on any new laws or regulations applicable to your company that address the use of AI in employment decisions.

Most of us spend a significant amount of time working and interacting with our colleagues, and we strive to make our workplace positive and productive.  As we dive into a new year, it is a good time to assess what we can do to maintain such a workplace.  A good place to start is reviewing policies and practices to make sure they reflect company culture and values and comply with existing and new employment laws and regulations.

Some considerations include:

• Has your company expanded, potentially subjecting it to additional laws and regulations, or creating practical day-to-day challenges that need to be addressed?
• When were your company policies and handbook last updated? Have there been changes in the law or in the culture, direction, or challenges of your business since that time?
• Are your managers and supervisors well trained in your policies and practices and how to foster a work environment that fits with your culture, values, and desire for a positive workplace and with relevant laws and regulations?
• Have your employees been trained in these matters as well?
• What laws and regulations have changed that might impact your company?

Employment law considerations for 2024 include:

The U.S. Equal Employment Opportunity Commission (“EEOC”) has released its “Strategic Enforcement Plan” for Fiscal Years 2024 to 2028.  According to the Plan, its purpose “is to focus and coordinate the

agency’s work over a multiple fiscal year (FY) period to have a sustained impact in advancing

equal employment opportunity.” The Plan outlines the following six subject matter priorities:

1. “Eliminating Barriers in Recruitment and Hiring,” including, for example, in the use of Artificial Intelligence.
2. “Protecting Vulnerable Workers and Persons from Underserved Communities from Employment Discrimination,” including for example, individuals with arrest or conviction records, LGBTQI+ individuals, temporary workers, and older workers.
3. “Addressing Selected Emerging and Developing Issues,” including, for example, protecting workers affected by pregnancy, childbirth, or related medical conditions.
4. “Advancing Equal Pay for All Workers.”
5. “Preserving Access to the Legal System,” including, for example, a focus on overly-broad waivers, releases, or non-disclosure or non-disparagement agreements.
6. “Preventing and Remedying Systemic Harassment.”

According to the EEOC Plan, it will “help guide the EEOC’s work through all of the agency’s activities, including outreach, public education, technical assistance, enforcement, and litigation.”

The EEOC’s Strategic Enforcement Plan is a good reminder to make sure your company has up to date policies and procedures in these areas that support and foster a positive and lawful work environment, and on which your managers, supervisors, and employees are well educated.

This is the first of a series of blogs that will address in more detail each of the six subject matters areas listed above – as well as other employment topics – and offer practical advice on maintaining a positive and productive workplace in 2024.

Pregnancy is a momentous and life-changing event in a woman’s life. It’s a time of anticipation, excitement, and sometimes, anxiety. While many employers are supportive and accommodating during this period, there have been instances where pregnant women have faced discrimination in the workplace. Fortunately, there are legal protections in place to combat this injustice. Title VII of the Civil Rights Act of 1964, amended by the Pregnancy Discrimination Act of 1978, has made it clear that pregnancy discrimination is against the law.

Statutory protection against sex discrimination did not exist on the federal level until passage of the Civil Rights Act of 1964. Title VII of the Act prohibits discrimination on the basis of race, color, religion, sex, and national origin.  However, for many years, pregnancy was not explicitly included as a protected category under Title VII. As a result, pregnant women were often the victims of gross injustice as they were denied promotions, demoted, or even fired solely because of their pregnancy. Women were often forced to choose between their career and starting a family. Thus, in 1978, Congress enacted the Pregnancy Discrimination Act (PDA) establishing that discrimination on the basis of pregnancy was a violation of Title VII.

The PDA was a vital amendment to Title VII, and it explicitly prohibited discrimination on the basis of pregnancy, childbirth, or related medical conditions. This amendment clarified that employers could not treat pregnant employees less favorably than other employees based on their pregnancy status.

The PDA has several key provisions that ensure pregnant women are protected in the workplace:

• Hiring and Employment: Employers are prohibited from refusing to hire a woman because she is pregnant, so long as she is able to perform the essential functions of the job. Pregnant women must be treated the same as any other job applicant and must be given the same opportunity for promotion.
• Health Benefits: Pregnant employees are entitled to the same health benefits as other employees. This includes medical coverage for pregnancy-related expenses, such as prenatal care and childbirth.
• Light Duty and Accommodations: Employers must provide reasonable accommodations to pregnant employees who need them, to the same extent they do for employees with short-term disabilities.
• Protection for Retaliation: It is illegal for employers to retaliate against employees for asserting their rights under the PDA. This means that if a pregnant employee speaks up about discrimination or requests accommodations, the employer cannot take adverse action against her in response.

The Pregnancy Discrimination Act has been a significant step towards equality in the workplace as it establishes that employers are legally bound to treat pregnant employees with the same professional opportunities for growth, development, and job security as their non-pregnant colleagues.

However, despite these legal protections, pregnancy discrimination persists. Discrimination on the basis of pregnancy is both unethical and illegal.  Therefore, it is important for women who believe they have been subjected to pregnancy discrimination to be aware of their rights and seek legal assistance if necessary. Employers and employees should consult experienced legal counsel to be fully advised of their rights and obligations under the law. If you or a close friend or family member needs assistance in this area, consult the Employment Team at the Finney Law Firm.