Labor and Employment Law
The EEOC’s Enduring Civil Rights Legacy: Addressing Workplace Discrimination in Vulnerable Communities Through the Pandemic and Beyond
By Anna Y. Park and Nakkisa Akhavan
The Equal Employment Opportunity Commission (EEOC) was established by the enactment of the historic Civil Rights Act of 1964 to enforce laws prohibiting employment discrimination. The agency plays a vital role in both investigating complaints of discrimination under federal law and litigating in the public interest. As we reflect on the advancement of civil rights protections in employment, we also acknowledge the ever-evolving manifestation of discrimination in the workplace. This has been particularly true during the COVID-19 pandemic. On April 28, 2021, the EEOC convened a meeting called the Workplace Civil Rights Implications of the COVID-19 Pandemic. Stakeholders from advocacy groups, the employer community, and other non-governmental entities provided insight into the problems created by the COVID-19 pandemic, its impact on different communities, and the role the EEOC can play in addressing these civil rights challenges. EEOC Chair Charlotte Burrows, appointed by President Biden, noted the far-reaching effects of COVID-19 and the ensuing civil rights crisis, where existing inequities in the workplace have been magnified and marginalized communities have been profoundly harmed, stating, “The pandemic’s health and economic fallout has disproportionally impacted people of color, women, older workers, immigrant and migrant workers, and individuals with disabilities, Native Americans, and many transgender persons and other vulnerable workers.”
II. ADDRESSING ISSUES FACED BY ESSENTIAL WORKERS
During the April 28, 2021 hearing, Mónica Ramirez, Founder and President of Justice for Migrant Women, spoke of the over-representation of people of color in frontline jobs, with 41.22 percent of frontline workers being from Black, Latinx, Asian-American Pacific Islander communities, and other categories other than white. There was devastating harm toward employees in certain sectors like meatpacking, where lack of concern for worker safety has led to numerous workers becoming sick or dying. All the while, many of the same companies employing these workers experienced financial boons.
III. ADDRESSING HARASSMENT
At the April 28, 2021 hearing, President and CEO of the National Women’s Law Center Fatima Goss Graves spoke about the burdens faced by women and people of color during the pandemic. They have been some of the hardest hit by disruptions caused by the pandemic because low-wage service workers are disproportionately women and people of color. Women and people of color are also likely to be working in dangerous conditions and in positions that are unable to be carried out remotely. Women, and mothers, in particular, have borne the responsibility for caring for young children, elderly or sick family members, as schools and other services closed. Women have been forced to leave the workforce to balance family needs at a higher rate than their male counterparts. Even before the #MeToo movement, the EEOC had convened a 2015 Harassment Taskforce and issued findings in a 2016 comprehensive examination of the persistent problem of harassment, providing concrete and proactive solutions. The EEOC has tackled sexual harassment on behalf of women across different industries like janitorial services, construction, food services, hospitality, agriculture, gaming, and healthcare, to name a few.
IV. CONSENT DECREES
Because the EEOC brings suit in the public interest, it is uniquely positioned to not only seek monetary relief for potential claimants, without recovering attorney’s fees, but, more importantly, to seek broad equitable relief in the form of injunctive remedies delineated in a publicly filed Consent Decree. These consent decrees are approved by the courts, hold the weight of a court order, and increase transparency and accountability to transform a workplace. Achieving true progress in these efforts requires a comprehensive approach, ongoing vigilance, a commitment to swift action, and a spirit and culture of compliance—all rooted in the basic foundation of care for workers.
V. ADDRESSING THE RISE OF HATE DIRECTED AT THE AANHPI COMMUNITY
John C. Yang, President and Executive Director for the Asian Americans Advancing Justice (AAJC), highlighted during the April 28, 2021 hearing that COVID-19 and anti-Asian hate have doubly hit the Asian American, Native Hawaiian, and Pacific Islander (AANHPI) communities. The AANHPI communities are complex with over 50 ethnicities, 100 languages, and differing social and economic indicators. The lack of disaggregated data on the different AANHPI groups has failed to show the disparity within the communities, with Native Hawaiians and other Pacific Islanders dying at four times the rate of other Asian Americans in California. Hatred directed toward Asian Americans has impacted not just workers, but also Asian small businesses, which have been disproportionately damaged. Language access remains a critical barrier to reaching vulnerable communities, including different AANHPI communities. The EEOC has been at the forefront of fighting labor trafficking in the civil rights context. One of the first trafficking cases brought as a civil rights violation and one of the largest cases on behalf of the AAHNPI communities is against the farm labor contractor Global Horizons in EEOC v. Global Horizons, Inc. and various farms that utilized its services to bring hundreds of impoverished Thai workers to the United States to work on their farms throughout the United States and subjected them to egregious harassment, deprivation of food and water, isolated, uninhabitable living conditions, and in some cases, even physical abuse. The EEOC has secured over $20 million in judgments and disseminated over $8 million in settlements and from collection actions to date to the affected Thai farmworkers. More important, the equitable injunctive remedies were tailored to strengthen the accountability of farm labor contractors to the farms. Global Horizons established the Ninth Circuit’s standard for establishing joint-employer status. In addition, the EEOC has made its website more accessible by adding seven new translations and expanding language capacity among EEOC staff to better serve the public. Further, the EEOC is a prominent and active member of the White House Initiative on AANHPI regional task forces, utilizing a network of federal agencies and community organizations to address the comprehensive problems facing the AANHPI communities.
VI. ADDRESSING DISABILITY DISCRIMINATION IN THE WORKPLACE
The public has looked to the EEOC for guidance in navigating employment issues during the pandemic, particularly in the area of disability law. The EEOC also has seen changes in compliance with disability laws such as the Americans with Disabilities Act (ADA). The pandemic has shown how ADA violations can be systemic class issues. Even before the pandemic, the EEOC’s disability cases evolved into large regional or even national cases involving hundreds or thousands of workers who were impacted by such policies. One interesting observation was the disproportionate existence of such policies in the healthcare industry and industries involving “essential” workers. The inquiry into the essential functions of a job will likely become an important issue moving beyond the pandemic as workers partially or fully return to the physical workplace. Flexibility and innovations are needed in balancing the needs of the employer and the employee in performing the job.
VII. NATIVE AMERICANS REMAIN DISADVANTAGED IN THE WORKPLACE
The technological divide continues to widen in different communities, causing some to become more isolated from access to vital resources and engagement. Among other things, the EEOC is partnering with Tribal Nations. Since 1980, the EEOC has worked with Tribal Employment Rights Offices (TEROs) to protect the employment rights of American Indians and Alaskan Natives. In 2012, the agency unanimously approved a model plan to partner with American Indian and Alaskan Native tribes to combat employment discrimination. Eligible individual American Indian and Alaskan Native tribes can coordinate investigations, share information, and provide reciprocal training in their mutual efforts to eradicate employment discrimination if they enter into an agreement with the EEOC.
These are just a few of the many areas that have been affected by the pandemic, and that the EEOC is addressing in fulfilling its mission of eradicating discrimination in the workplace. In addition to bringing civil rights cases to combat trafficking, the EEOC serves on the President’s Interagency Task Force to Monitor and Combat Trafficking in Persons. The EEOC recently launched an interagency initiative to end retaliation to advance workers’ rights. The employer community has a unique opportunity to reimagine the workplace. As is relevant to the EEOC’s work, this includes reimagining and revamping the ways employers address harassment, discrimination, and retaliation in the workplace. To address the ever-evolving workplace, the EEOC recently announced a new initiative to address equity issues in the workplace. The EEOC remains ever vigilant in serving the needs of the most vulnerable of populations. In the pandemic and beyond, the EEOC will continue to evolve to carry out its mission for all stakeholders.
Anna Park is the regional attorney for the Los Angeles District Office of the EEOC, which covers Central and Southern California, Nevada, Hawaii, and the territories in the Pacific including Wake Island, Northern Mariana Islands, and American Samoa. She is in charge of all litigation on behalf of the EEOC in her district and has brought groundbreaking and influential cases on behalf of the Commission for the past two decades. Nakkisa Akhavan is a Supervisory Trial Attorney for the EEOC. She has extensive experience litigating employment discrimination cases in federal courts including the Global Horizon, Prestige, and JPL cases. The authors thank Natalie Nardecchia, Senior Trial Attorney, for her assistance with this article. The authors can be reached at email@example.com or (800) 669-4000.