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  4. Written Testimony of Damon Hewitt, Acting President and Executive Director/Executive Vice President of the Lawyers’ Committee for Civil Rights Under Law

Written Testimony of Damon Hewitt, Acting President and Executive Director/Executive Vice President of the Lawyers’ Committee for Civil Rights Under Law

April 2021

I. INTRODUCTION

Chair Burrows, Vice Chair Samuels, and Members of the U.S. Equal Employment Opportunity Commission, my name is Damon Hewitt and I serve as the Acting President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law (“Lawyers’ Committee”). On behalf of the Lawyers’ Committee, I welcome the opportunity to submit testimony on the civil rights implications of the COVID-19 pandemic.

The Lawyers’ Committee is a national civil rights organization created at the request of President John F. Kennedy in 1963 to mobilize the private bar to confront issues of racial discrimination. Today, we are on the forefront of the fight for racial justice.

The COVID-19 crisis has exacerbated longstanding racial health and economic disparities, resulting in higher incidences of COVID-19 infection and death, as well as increased unemployment and financial insecurity for these vulnerable populations. Millions of Americans have lost their jobs, and hundreds of thousands have lost their lives over the past year. Those who retained employment were often deemed “essential workers.” The consequences for Black and brown communities have been particularly dire. This is no coincidence; rather it is the foreseeable product of centuries of systemic racism and structural discrimination.

The essential workforce is disproportionately comprised of people of color, people living with disabilities, low-wage workers, and women.[1] Because essential jobs are often public facing, in healthcare, or other congregate settings, this vulnerable segment of the workforce continues to face an outsized risk of contracting COVID-19 on the job. Indeed, pre-pandemic data from the U.S. Bureau of Labor Statistics indicates that only 19.7% of Black workers can work from home, compared to 29.9% of white workers.[2] Worse still, merely 16.2% of Latinx workers are able to telework, while 31.4% of non-Latinx workers can work remotely.[3] And, due to systemic health inequities, essential workers of color are more likely to suffer serious COVID-19 infection and have higher death rates than their white counterparts.[4] Because so many people of color are front-line workers, they are also more likely to suffer from the long-term effects of COVID-19. Accordingly, the EEOC should ensure that those who suffer from “long COVID” are able to enjoy protections under the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973.

Those not considered “essential workers” have also suffered. Millions have lost their jobs and many have stayed unemployed since. In the last two weeks of March 2020 alone, almost 10 million people applied for unemployment benefits.[5] Those layoffs continued, and many jobs have not returned. That fallout disproportionately hurt workers of color. A March 2021 survey by the U.S. Bureau of Labor Statistics revealed that while the unemployment rate for white workers was only 5.4%, it was much higher among people of color: 9.6% of Black workers, 7.9% of Hispanic workers, and 6.0% of Asian workers were unemployed during that same period.[6] In such a situation, it is vital that available employment opportunities are meaningfully accessible to all. 

The Lawyers’ Committee has led efforts to address the pandemic’s disparate impact on people of color, and ensure equity in state and federal COVID-19 response plans. Specifically, the organization has advocated for enhanced racial data collection and paid sick leave to mitigate the pandemic’s outsized effect on Black and brown workers. The Lawyers’ Committee has also fought to ensure that employers and policymakers are actively seeking to rectify these unacceptable economic and health disparities, by publishing advocacy letters, submitting rulemaking petitions, and engaging in litigation.

The economic and employment issues exacerbated by the health crisis will undoubtedly outlast the pandemic. It is imperative that, going forward, the EEOC use its enforcement power to: (1) ensure employers provide reasonable accommodations, as mandated by the Americans with Disabilities Act (ADA), for employees experiencing long-haul COVID-19 symptoms; (2) ensure people living with disabilities, who are disproportionately people of color, are afforded the benefits of the EEOC’s Final Rule on Affirmative Action for People with Disabilities in Federal Employment; and (3) reverse the recent changes to its conciliation process that make EEOC enforcement actions more burdensome. Ultimately, the EEOC must ensure that, as the economy slowly restarts, employment opportunities are available on an equitable basis.

II. ESSENTIAL WORKERS ARE UNIQUELY VULNERABLE TO COVID-19

a. Essential workers are denied health and safety standards in the workplace

There is no question that essential workers have shouldered the brunt of the COVID-19 pandemic and the resulting economic crisis. The risks in essential work are glaring. The CDC reports that, between just April and May 2020, 16,233 essential workers in 239 meat packing facilities became infected with COVID-19.[7] By February 2021, 54,000 workers at 569 plants tested positive for COVID-19 and 270 have died.[8] Amazon reported 19,816 COVID-19 infections among its workforce, as of October 2020.[9] And, the United Food and Commercial Workers Union reports 17,400 infections and 109 deaths among grocery store workers, as of December 2020.[10] Clearly, despite the risks, governmental and private entities have failed to protect essential workers from COVID-19 in the workplace. The Lawyers’ Committee has been deeply involved in efforts to try to rectify this failure since the beginning of the pandemic.

Even the CDC itself issued guidance that would have subjected essential workers to unreasonable risk of COVID-19 infection. Early pandemic guidance “advis[ed] that critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, provided they remain asymptomatic[.]”[11] In response, the Lawyers’ Committee submitted a Request for Correction, showing that the guidance was flawed and out of step with widely-recognized science, as well as the CDC’s own recommendations for the general population, which stated that people who “feel healthy but [r]ecently had close contact with COVID- 19 . . . [should] stay home until 14 days after your last exposure.”[12] The Lawyers’ Committee’s Request for Correction argued the guidance should provide the same protections for critical infrastructure workers as it did for everybody else, especially in light of the numerous outbreaks in these industries. Fortunately, the CDC has since changed its guidance, advising critical infrastructure workers to self-quarantine for 14-days, except in very limited circumstances.[13]

Likewise, some states have outright refused to protect essential workers from COVID-19 infection. For example, the Lawyers’ Committee petitioned the North Carolina Department of Labor to issue Emergency Temporary Standards that would require certain protections, such as face mask requirements, the provision of Personal Protective Equipment for workers, social distancing, and the opportunity for workers to wash and sanitize their hands at regular intervals.[14] North Carolina denied this Petition, arguing that “the virus has not proven to cause serious death or serious physical harm from the perspective of an occupational hazard,” and callously noting that “in North Carolina, there were 261,742 COVID-19 cases and 4,183 deaths; that is less than 1.5% of those who have contracted the disease.”[15] Following this denial, the Lawyers’ Committee filed suit in North Carolina state court requesting judicial review of NCDOL’s decision as well as an administrative complaint with the Department of Labor urging the department to investigate NCDOL’s failure to enforce North Carolina’s Occupational Safety and Health Act with respect to congregate workplaces.[16]

b. Robust data collection is necessary to ensure equitable employment opportunities and safety in the workplace

Though the limited available data makes it abundantly clear that workers of color are shouldering the burden of COVID-19, the picture is still woefully incomplete and only tells the beginnings of a devastating story for communities of color. There is still an important, yet untold, part of the story that only data can unlock. Public health officials need comprehensive, disaggregated data to be able to develop effective strategies to address the impacts of the pandemic and appropriately allocate resources to the communities most in need.

The Lawyers’ Committee has been at the forefront of advocacy related to equitable data collection, including sending letters to state health departments and the CDC to push for better guidance and practical data collection practices. As a result of those efforts, the Lawyers’ Committee has assembled a forthcoming report of best practices for state and federal demographic data collection related to the pandemic. Several of the recommended data elements, like insurance status and employment status/type, aim to measure the impact of COVID-19 on workers — workers of color in particular. Collecting and reporting this data is critical to help public health officials and advocates understand and proactively address well-documented racial disparities in coronavirus infection, hospitalization, and death rates.[17] It is imperative that the EEOC relies on comprehensive data to ensure any guidance issued to employers during the pandemic accounts for the full breadth of COVID-19’s impact on the health and safety of employees of color.

c. Essential workers lack critical employment benefits

Employers have also failed to protect workers from COVID-19 infection by denying them access to essential employment benefits. Many employers do not provide paid time off necessary to quarantine due to illness or exposure to COVID-19. In addition, some essential workers may be unable to receive COVID-19 vaccinations due to their inability to take paid time off for the necessary appointments, or their lack of sick leave to recover from the vaccine’s side effects.[18] Black and Latinx workers are also less likely to have health insurance coverage, making it more difficult for them to access potentially lifesaving healthcare resources.[19] As a result of these factors, many workers may report to work despite an active COVID-19 infection, forgo treatment for more serious symptoms, or decline to receive the vaccine. The Lawyers’ Committee has therefore engaged in legislative advocacy to expand paid leave benefits to workers impacted by the pandemic.[20]

III. WORKERS OF COLOR MUST HAVE EQUITABLE EMPLOYMENT OPPORTUNITIES

The EEOC must ensure all workers of color are afforded meaningful employment opportunities. Guaranteeing the availability of employment on an equitable basis is always important, but especially so during a pandemic. In 2020, even as the economy contracted and millions lost their livelihood, the EEOC received 67,448 charges of discrimination.[21] Now, as thousands of Americans grapple with the physical and financial impact of the pandemic, the EEOC will likely confront unprecedented circumstances that may require vigorous enforcement of anti-discrimination laws.

a. The EEOC must vigorously enforce anti-discrimination laws for workers impacted by COVID-19

While America’s essential workforce still faces outsized risk of COVID-19 infection, the EEOC can play a pivotal role in upholding the rights of workers who have been physically or mentally impaired by COVID-19. Governmental and private entities have tended to view death as the only negative outcome of the virus. However, the CDC lists a multitude of long-term effects following nonfatal infection, including: fatigue, chest pain, headache, intermittent fever, hair loss, memory problems, depression, inflammation of the heart muscle, lung function abnormalities, acute, kidney injury, and difficulty thinking and concentrating.[22] Indeed, many workers who experience the long-term effects of COVID-19—often referred to as people living with Long COVID or “COVID long haulers”—report a variety of symptoms that have left them physically or mentally impaired and unable to work at their pre-COVID capacity months after their initial infection.[23] Though the data is limited, some experts believe that many Long COVID sufferers are women of color.[24]

Because of the nature and length of their symptoms, the ADA may afford legal protections to such workers. Specifically, the ADA may require employers to provide reasonable accommodations for COVID long haulers, such as modified work schedules or the ability to work from home. The ADA may also prohibit employers from retaliating against employees who complain of discrimination due to a COVID-19-related disability. The EEOC can support workers experiencing post-COVID effects by enforcing the ADA in these unprecedented circumstances.[25]

The EEOC must also ensure the continued vitality of affirmative action among federal agencies in order to provide people living with disabilities meaningful access to employment. Those living with disabilities were disproportionately employed in industries where nearly half the jobs disappeared during the pandemic, including clothing stores, hospitality, and food services.[26] People living with disabilities are also more likely to work in entry-level positions, and so were among the first to be laid off during the economic downtown.[27] The issue is intersectional. Black and Indigenous people have higher rates of disability than other groups.[28] Roughly 25% of Black and 30% of Indigenous people have a disability, compared with only 20% of non-Hispanic white people.[29] The unemployment rate for Black people with a disability was 16.3%, in 2020, significantly higher than the 11.6% rate for white people.[30] And these numbers likely do not yet reflect those with COVID-19-related disabilities, who are also disproportionately people of color.

These COVID long haulers, as well as all those living with a disability, should be able to benefit from affirmative action policies for people with disabilities, such as those that apply to federal agencies under Section 501 of the Rehabilitation Act of 1973.[31] Per the EEOC’s implementing regulations for this Act, federal agencies must aim to have people with disabilities comprise 12% of their workforce.[32] In the wake of the pandemic, the Commission must work to ensure that all workers with a disability, including COVID long haulers, receive the protections they are afforded by federal law.

b. The EEOC Conciliation Process

In light of the disproportionate impact of the pandemic on workers of color, the EEOC has a duty to enforce anti-discrimination laws through litigation, if necessary. The Lawyers’ Committee submitted a comment in opposition to the EEOC’s proposed rule amending the Commission’s procedural rules governing the conciliation process. That rule, promulgated during the pandemic, requires that the Commission disclose additional information to employers as part of the conciliation process. The change requires the Commission to make extensive disclosures that would potentially reveal its litigation strategy, such as providing the bases for the Commission’s reasonable cause findings, whether the Commission has classified the case as a systemic, class, or pattern or practice case, and disclosing information from its investigation that raised any doubt that the discrimination occurred. The changes impose additional burdens on EEOC enforcement staff, create new procedural challenges by which defendants can evade liability in civil rights litigation, and deter witnesses from coming forward. 

We were especially concerned that the EEOC chose to make these changes during an ongoing health crisis that was disproportionately harming people of color. As we observed in our comment, “[u]ndermining the EEOC’s ability to bring public interest litigation will decrease an important avenue for low-income workers who are disproportionately Black and Brown to tackle systemic workplace discrimination.” In an ongoing pandemic that has disproportionately harmed people of color, it is particularly important for the EEOC to vigorously enforce anti-discrimination statutes. We therefore encourage the EEOC to reverse its changes to the conciliation process.

IV. CONCLUSION

For over a year, workers of color have faced a horrendous choice: their lives or their livelihood. Systemic economic and health inequities, entrenched over decades, have created the conditions that allowed the COVID-19 crisis to decimate Black and brown communities with near impunity. These racial and ethnic disparities cannot be allowed to persist any longer. The EEOC must play a central role in ensuring that workers of color are protected as the economy recovers.

[1] Celine McNicholas & Margaret Poydock, Who are essential workers?A comprehensive look at their wages, demographics, and unionization rates, Economic Policy Institute: Working Economics Blog (May 19, 2020, 11:25am), https://www.epi.org/blog/who-are-essential-workers-a-comprehensive-look-at-their-wages-demographics-and-unionization-rates/.

[2] Economic News Release, U.S. Bureau of Labor Statistics, Table 1. Workers who could work at home, did work at home, and were paid for work at home, by selected characteristics, averages for the period 2017-2018, https://www.bls.gov/news.release/flex2.t01.htm (last modified Sept. 24, 2019).

[3] Id.

[4] William F. Marshall, Coronavirus infection by race: What's behind the health disparities?, Mayo Clinic (Aug. 13, 2020), www.mayoclinic.org/diseases-conditions/coronavirus/expert-answers/coronavirus-infection-by-race/faq-20488802.

[5] Tami Luhby, Countless Americans cannot complete unemployment applications, CNN.com (Apr. 4, 2020, 11:26am), https://www.cnn.com/2020/04/04/politics/unemployment-benefits-states-coronavirus/index.html.

[6] News Release, U.S. Bureau of Labor Statistics, THE EMPLOYMENT SITUATION — MARCH 2021 (Apr. 2, 2021), https://www.bls.gov/news.release/pdf/empsit.pdf.

[7] Michelle A. Waltenburg et al., Morbidity and Mortality Weekly Report: Update: COVID-19 Among Workers in Meat and Poultry Processing Facilities ― United States, April–May 2020, Centers for Disease Control & Prevention (July 7, 2020)  https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6927e2-H.pdf.

[8] Rachel Treisman, Meatpacking Companies, OSHA Face Investigation Over Coronavirus In Plants, NPR (Feb. 1, 2021, 3:05pm), https://www.npr.org/sections/coronavirus-live-updates/2021/02/01/962877199/meatpacking-companies-osha-face-investigation-over-coronavirus-in-plants.

[9] Update on COVID-19 Testing, Amazon (Oct. 1, 2020), https://www.aboutamazon.com/news/operations/update-on-covid-19-testing.

[10] Press Release, United Food and Commercial Workers International Union, America’s Largest Food & Retail Union Calls on CDC for COVID-19 Vaccine Early Access for Essential Workers in Grocery, Meatpacking, and Food Processing on Frontlines of Pandemic as Infections Skyrocket (Dec. 1, 2020), https://www.ufcw.org/press-releases/americas-largest-food-retail-union-calls-on-cdc-for-covid-19-vaccine-early-access-for-essential-workers-in-grocery-meatpacking-and-food-processing-on-frontlines-of-pandemic-as-infections/.

[11] See Letter from The Lawyers’ Committee for Civil Rights under Law to the Agency for Toxic Substances & Disease Registry, Centers for Disease Control & Prevention (July 20, 2020),  https://aspe.hhs.gov/system/files/pdf/263941/CDC-RFC-Lawyers-Committee-Civil-Rights.pdf.

[12] Id.

[13] COVID-19 Critical Infrastructure Sector Response Planning, Centers for Disease Control & Prevention (Dec. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/critical-infrastructure-sectors.html.

[14] Pet. For Rulemaking (Oct. 12, 2020), https://www.ncjustice.org/wp-content/uploads/2020/10/WRP-NCDOL-combined-petition-and-rule-10-12-20.pdf.

[15] N.C. Compl. About State Program Admin. (Feb. 16, 2021), Ex. 2 at 6, https://lawyerscommittee.org/wp-content/uploads/2021/02/2021-02-16-Final-CASPA-with-exhibits.pdf.  

[16] Pet. for Judicial Review, Episcopal Farmworkers Ministry et al. v. N.C. Dep’t of Labor, (N.C. Sup., Dec. 2020); N.C. Compl. About State Program Admin. (Feb. 16, 2021), https://lawyerscommittee.org/wp-content/uploads/2021/02/2021-02-16-Final-CASPA-with-exhibits.pdf

[17] Risk for COVID-19 Infection, Hospitalization, and Death By Race/Ethnicity, Centers for Disease Control & Prevention (Apr. 16, 2021), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-race-ethnicity.html.

[18] Amy Schoenfeld Walker, Laura Leatherby, & Yuriria Avila, What’s Behind the Hispanic Vaccination Gap?, N.Y. Times (Mar. 29, 2021), https://www.nytimes.com/interactive/2021/03/29/us/hispanic-vaccine-gap.html.

[19] Katherine Keisler-Starkey & Lisa N. Bunch, Health Insurance Coverage in the United States: 2019, U.S. Census Bureau (Sept. 2020), https://www.census.gov/content/dam/Census/library/publications/2020/demo/p60-271.pdf.

[20] Letter from Kristen Clarke, President & Executive Director, The Lawyers’ Committee for Civil Rights Under Law, to the United States Congress (Apr. 16, 2020), https://lawyerscommittee.org/wp-content/uploads/2020/04/Lawyers-Committee-letter-re-priorities-for-fourth-COVID-bill_4.16.20.pdf.

[21] Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2020, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2020.

[22] Post-COVID Conditions, Centers for Disease Control & Prevention (Apr. 8, 2021) https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects.html.

[23] David Tuller, For Covid ‘Long Haulers,’ Battling for Disability Benefits Adds Aggravation to Exhaustion, California Healthline (Mar. 9, 2021), https://californiahealthline.org/news/article/covid-long-haulers-disability-benefits-hurdles-frustration/.

[24] Jamie Ducharme, Black Women Are Fighting to Be Recognized as Long COVID Patients, Time (Apr. 12, 2021, 2:44pm), https://time.com/5954132/black-women-long-covid/.

[25] The ADA: Your Responsibilities as an Employer, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/publications/ada-your-responsibilities-employer.

[26] Andy Newman, ‘I Really Loved My Job’: Why the Pandemic Has Hit These Workers Harder, N.Y. Times (Mar. 5, 2021), https://www.nytimes.com/2021/03/05/nyregion/workers-disabilities-unemployment-covid.html.

[27] Id.

[28] Disability and Health Promotion: Adults with Disabilities: Ethnicity and Race, Centers for Disease Control & Prevention, https://www.cdc.gov/ncbddd/disabilityandhealth/materials/infographic-disabilities-ethnicity-race.html (last reviewed Sept. 16, 2020).

[29] Id.

[30] Economic News Release, U.S. Bureau of Labor Statistics, Persons with a Disability: Labor Force Characteristics Summary (Feb. 24, 2021, 10:00am), https://www.bls.gov/news.release/disabl.nr0.htm.

[31] The Rehabilitation Act of 1973: Sections 501 and 505 (Pub. L. 93-112), U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/statutes/rehabilitation-act-1973.

[32] Press Release, U.S. Equal Employment Opportunity Commission, EEOC Issues Regulations on the Federal Government's Obligation to Engage in Affirmative Action for People with Disabilities (Jan. 3, 2017), https://www.eeoc.gov/newsroom/eeoc-issues-regulations-federal-governments-obligation-engage-affirmative-action-people.