Meeting of the U.S. Equal Employment Opportunity Commission
"Employment Discrimination in the Aftermath of September 11"
December 11, 2001
The Equal Employment Advisory Council (EEAC) commends the Equal Employment Opportunity Commission (EEOC) for holding this meeting and for the other steps the Commission has taken to be responsive to our nation's priorities and to its stakeholders' special needs in the aftermath of September 11th. These actions reflect a clarity of focus that speaks well of the Commission's leadership, particularly in view of the tragic destruction of the EEOC's own New York office on that terrible day.
EEAC is an association of 350 of the nation's largest private-sector employers, collectively employing some 20 million people in the United States and millions more throughout the world. It is dedicated to advancing practical, effective programs to eliminate employment discrimination.
As a part of this effort, EEAC provides a broad array of informational services to its members, including weekly memoranda and periodic workshops on EEO-related issues and developments. It also serves as a clearinghouse, responding to questions from its member companies about equal employment opportunity, affirmative action, and other human resources issues and providing facilitated networking to assist companies in sharing information about compliance programs and best practices.
Like the Commission, EEAC has given high priority since September 11th to issues related directly and indirectly to the workplace effects of terrorism and responses to terrorism. Over these three months, the Council has sent its members nearly a dozen memos addressing these subjects, and at its semiannual membership meeting in October, EEAC conducted an "Open Forum on People and Work Issues in the Wake of September 11th," as well as a workshop on military leave and reemployment issues brought to the fore by the war against terrorism.
This statement briefly discusses several post-September 11th issues that have raised particular concerns for employers, as well as steps that EEAC and its members have been taking to address these developments. Although not all of these matters fall directly within the EEOC's purview, we believe it is important that the Commission have a broad perspective on the many ways in which September 11th has changed the American workplace.
First, EEAC commends the EEOC for its prompt recognition of the possibility that the events of September 11th could spur instances of religious or national origin discrimination or harassment in some workplaces and for the timely issuance of its September 14th press release, which not only urged tolerance, but provided specific, practical guidance on steps employers could take to avert such backlash. EEAC immediately forwarded copies of that press release to its members with a cover memo reiterating the Commission's recommendations.
In a similar vein, EEAC acted immediately after September 11th to supply its members with copies of several pamphlets from its own "What Managers Should Know " series, including pamphlets on "Preventing Race, Color, and National Origin Discrimination"; "Preventing Religious Discrimination"; and "Preventing Harassment in the Workplace."
Later in September, EEAC also reported to its members on a recent federal appeals court decision that reaffirmed the duty of employers to protect employees against unlawful harassment by third parties. Although that particular case involved sexual harassment, EEAC used it as a timely occasion to remind its members of their responsibility to prevent third-party harassment based on such factors as religion and national origin, as well. Our memo also included a list of suggestions for enhancing harassment prevention strategies to include nonemployee situations.
EEAC's member companies' practices have been fully in accord with these recommendations, and in many cases well out ahead of them. Virtually all EEAC members already had in place comprehensive, well-established policies against discrimination and harassment and had regularly and effectively communicated those policies to their employees.
Many EEAC companies, even before receiving the EEOC's press release and other materials from EEAC, thought it appropriate in the immediate aftermath of the September 11th events to reiterate their policies against discrimination, harassment, and/or inappropriate workplace behavior and communications. Some companies specifically included inappropriate e-mail communications in these reminders. Some also accompanied their announcements with strong statements from their chief executive or chief operating officer warning specifically against harassment of persons of Middle Eastern origins or Islamic faith.
A number of EEAC member companies, often acting through corporate diversity offices and/or Muslim employee networking groups, have conducted targeted training for their employees since September 11th on such topics as understanding the Islamic religion and understanding what it means to be an Arab-American in today's environment. Several companies also have conducted periodic "pulse check" surveys among employees to determine whether there are specific September 11th-related problems or issues in their workplaces that require the company's attention.
On the other hand, a number of EEAC members concluded that, because their employees already were well aware of the company's antidiscrimination policies and supportive of workplace diversity, the wiser course for them to take was not to issue any communications implying that the company expected a backlash, unless and until some specific indication of a need for such a reminder might arise.
In short, EEAC's member companies have responded to the possibility of a backlash of discrimination in a variety of different ways, each tailored to the culture and circumstances of the particular company's workplace. Thus far at least, each of these various approaches appears to be working successfully.
EEAC members have not reported any significant upsurge in incidents of religious or national origin-based discrimination or harassment since September 11th, although a few companies have had to deal with a few reports of such incidents. At the same time, several companies also have had to deal with reports alleging that employees of Middle Eastern origin were taunting or antagonizing other employees in the wake of September 11th. Companies, for the most part, are handling both of these types of incidents through their regular internal discipline, complaint investigation, and dispute resolution procedures.
Most EEAC members also responded quickly to the heightened threats of terrorism by beefing up plant and office security measures, including guard forces, physical barricades, alarm systems, ID checks, searches, parking restrictions, and other security procedures. Some of these new restrictions have raised issues of reasonable accommodation for individuals with disabilities, and EEAC members are addressing those issues effectively on a case-by-case basis, following their regular, interactive accommodation processes.
For example, a number of EEAC member companies have instituted new security restrictions on parking near company facilities. Many now provide special shuttle transportation to employees with disabilities, so that they can get to and from new, more distant parking locations. Some companies are providing such shuttle transit to all affected employees.
Many companies also instituted travel restrictions immediately following the terrorist attacks, and, although most have since eased those restrictions somewhat, a number of companies still are operating under travel restrictions that did not exist before September 11th. At some EEAC member companies, employees have reported difficulties in traveling due to stepped-up airport security. In a few instances, Arab-American employees have reported being singled out or hassled by airline and/or airport security personnel.
Companies are keeping employees who travel abroad and foreign nationals in the U.S. apprised of developments affecting travel, visa enforcement, and related matters. Many are advising such employees to carry all documentation (e.g., passports, visas) with them at all times, and to make sure that all their documents are current, in anticipation of heightened immigration enforcement and border security. At least one EEAC member company has provided its own security personnel upon request to accompany traveling employees to airports where there is concern that the employees might be hassled because their attire or appearance could cause them to be perceived as Middle Eastern.
EEAC also has alerted its members to the likelihood of heightened immigration enforcement and reminded them of their obligation to verify employment eligibility and maintain "I-9" forms.
Congress, of course, also acted during this period to tighten security throughout the nation and to enhance airline safety, in particular, by enacting comprehensive, new antiterrorist and airline security legislation. EEAC's analysis of that legislation, however, indicates that it will have only minimal, direct impact on private sector employers outside the aviation industry, apart from the imposition of a new employee training requirement on financial institutions.
While tightening safety and security measures, many companies also acted quickly after September 11th to adopt or update disaster preparedness plans covering such matters as evacuation procedures, emergency communications systems, and recovery of operations in the event of situations ranging from bombings, hostage takings, and chemical or biological contaminations to fires and natural disasters. This led to an influx of questions to EEAC's clearinghouse about special problems employees with disabilities may face in the event of a disaster or emergency. Those questions prompted EEAC to issue a special memo to its members early in October providing practical suggestions for effective disaster planning that take into account the special needs of individuals with disabilities in ways consistent with the Americans with Disabilities Act (ADA).
Not incidentally, the EEOC provided EEAC with valuable technical advice in the preparation of our memo on disaster preparedness and the ADA, for which the Council is sincerely grateful. Later in October, when the Commission issued its own "Fact Sheet on Obtaining and Using Employee Medical Information as Part of Emergency Evacuation Procedures," which reiterated many of the recommendations the Commission earlier had provided to EEAC and added more specific guidance on several key points, EEAC immediately provided copies of that fact sheet to its member companies, as well.
Many EEAC member companies have extended general invitations to employees to come forward if they feel they might need special assistance of some kind during an evacuation or other emergency situation. Some companies have proactively reached out to employees who previously had self-identified as individuals with disabilities to explore what special needs, if any, they might have in such circumstances.
In the immediate aftermath of September 11th, EEAC received a number of clearinghouse calls from member companies anticipating the possibility of a large military call-up. The callers were seeking information about the Uniformed Services Employment and Reemployment Rights Act (USERRA), which consolidated and expanded upon the workplace rights of U.S. military personnel and reservists. In response, EEAC provided its members with a memo that reviewed their obligations under the law and included, as an attachment, a "Non-Technical Resource Guide" to USERRA prepared in 1998 by the DOL's Veterans Employment and Training Service. As mentioned above, EEAC also held a workshop on military leave policies at its semiannual membership meeting in October. For the time being, EEAC members appear to be coping effectively with the military leave issues posed by the current war effort.
A number of EEAC's member companies, although not required to do so, are providing employees with paid leave for periods of military service. These periods range from a few weeks to as much as a year or more, in some instances.
Reports of anthrax contamination at U.S. postal facilities and concerns that this or some other deadly agent could spread to corporate mail handling facilities and employee populations have led to a number of calls to EEAC's clearinghouse from members interested in benchmarking with other companies on steps they are taking to protect their employees from possible harmful exposures. In response, EEAC sent its members a memo early in November apprising them of new or reissued guidance on safe mail handling procedures from various federal agencies, including the U.S. Postal Service (USPS), the Federal Bureau of Investigation (FBI), the Centers for Disease Control, and the Department of Labor. The memo also addressed potential legal obligations employers might have to protect employees against harmful exposures.
EEAC's memo also summarized a number of steps large employers are taking to address the threat of bioterrorism, based on an impromptu survey of about 20 of its member companies. The survey revealed a wide spectrum of responses. Some employers reported simply communicating safe mail handling procedures to employees via flyer or e-mail, and posting or distributing the FBI and/or USPS guidance or similar documents from corporate security.
Other companies reported having issued personal protective equipment (gloves, masks) to employees, trained employees on identifying characteristics of potentially hazardous mail and appropriate action, purchased scanning equipment to "x-ray" mail for possibly harmful devices, and ceasing to accept lobby deliveries.
Finally, a few companies with offices in cities where anthrax contamination already had been confirmed at the time of our survey reported having taken more extreme precautions, including some or all of the following: temporarily suspending receipt of U.S. mail; quarantining mail from suspect post offices; conducting environmental testing of their mail rooms; issuing significant personal protective equipment to mailroom employees (gloves, masks, gowns, hoods); providing antibiotics and/or anthrax testing to mailroom employees; closing mailrooms to other employees during certain hours, so mail employees can focus on screening for suspicious mail; and providing additional ventilation in mail handling facilities.
While it is predictable that some of these mail handling procedures may affect individuals with disabilities in ways that will raise issues of reasonable accommodation, member companies have not called any specific issues of that nature to EEAC's attention to date. If and when such issues do arise, we anticipate that EEAC members will, as usual, deal with them case-by-case through their established, interactive processes.
The foregoing are just a few of the major people- and work-related issues large companies have been confronting since September 11th. Some of the issues are ongoing, but many are likely to change as terrorism and its effects on America evolve and U.S. companies continue to adapt their ways of doing business to new conditions.
For example, a number of EEAC's member companies now are looking into making greater use of telecommuting, video conferencing, and alternative methods of transmitting products and communications rather than by air or by U.S. mail. These changes inevitably will have significant human resources consequences, and some will require scrutiny under the ADA, the Family and Medical Leave Act, workers' compensation statutes, and other employment laws to ensure compliance.
Companies also foresee and some already report experiencing, increases in employee stress and stress-related problems as a consequence of the events on and since September 11th. In anticipation of such problems, companies are reviewing their health insurance plans, employee assistance programs, reasonable accommodation processes, attendance management systems, and other policies and practices to be sure they are up-to-date and adequate to the anticipated challenges. Changes in these programs also will require scrutiny from a compliance perspective.
EEAC appreciates the Commission's recognition that the events of September 11th have had, and will continue to have, profound effects on the American workplace. We are grateful for the Commission's desire to be informed about these matters and for the opportunity this meeting has afforded EEAC and other interested people and organizations to provide input.
This page was last modified on December 17, 2001.
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