Civil Rights Reporter Journal of the Texas Workforce Commission Civil Rights Division Bryan Snoddy - Division Director Civil Rights Reporter Journal of the Texas Workforce Commission Civil Rights Division Bryan Snoddy - Division Director 04 ISSUE MAY 2020 Equal Employment & Fair Housing Texas Workforce Commisson Commissioners Bryan Daniel - Chairman and Commissioner Representing the Public Julian Alvarez - Commissioner Representing Labor Aaron Demerson - Commissioner Representing Employers Telecommuting and Mediating During COVID-19 By: Faith N. Penn As a state Employment Discrimination Mediator, my first duty is to the citizens and residents of Texas. In this role, I strive to produce the best outcome for both parties in all mediation settings. Now, due to COVID-19, there are significant changes in not only our personal lives but also in our work environment as well. Regardless of the present situation, our work remains significant and requires our attention and expertise even more. Our economy’s well-being depends on it. Necessary and crucial measures have been put into place to protect our communities from the spread of COVID-19. We have all been asked to limit our activities and to engage in social distancing and self-isolation when possible, and for businesses, this means closing their doors to the public and laying off hundreds of thousands of employees. The majority of those still employed in an office setting are now working from home, and this includes those with the challenge of successfully mediating and resolving disputes despite the gnawing concern and unrest that comes with a national lockdown. I admit I was originally opposed to telecommuting because I was concerned with not having the resources needed to conduct productive mediations. I feel I am at my best when I am connecting with people, assisting parties to resolve their issues and helping them find common ground. With COVID-19 essentially forcing people to work from home, or causing them financial hardship, I felt that this obstacle would significantly hinder the mediation process, and I felt I would be limited in being able to ensure that both parties could walk away with the best outcome. Nonetheless, employment discrimination mediation sessions need to move forward as scheduled. And, they are. The question is, how does a mediator help parties reach a successful outcome when most businesses are struggling to remain afloat during this pandemic? The short answer: creativity. In all actuality, professionals in the Alternative Dispute Resolution field have been Mission Statement The mission of the Civil Rights Division is to reduce discrimination in employment and housing through education and enforcement. Vision The vision of the Civil Rights Division is to help create an environment in which the people of the State of Texas may pursue and enjoy the benefits of employment and housing that are free from discrimination.
Transcript
Civil Rights ReporterJournal of the Texas Workforce Commission Civil Rights Division
Bryan Snoddy - Division Director
Civil Rights ReporterJournal of the Texas Workforce Commission Civil Rights Division
Bryan Snoddy - Division Director
04I S S U E
MAY2020
Equal Employment& Fair Housing
Texas Workforce Commisson CommissionersBryan Daniel - Chairman and Commissioner Representing the PublicJulian Alvarez - Commissioner Representing LaborAaron Demerson - Commissioner Representing Employers
Telecommuting and Mediating During COVID-19By: Faith N. Penn
As a state EmploymentDiscrimination Mediator, my firstduty is to the citizens and residentsof Texas. In this role, I strive toproduce the best outcome for bothparties in all mediation settings.Now, due to COVID-19, there aresignificant changes in not only our
personal lives but also in our work environment as well.Regardless of the present situation, our work remainssignificant and requires our attention and expertiseeven more. Our economy’s well-being depends on it.Necessary and crucial measures have been put intoplace to protect our communities from the spread ofCOVID-19. We have all been asked to limit our activitiesand to engage in social distancing and self-isolationwhen possible, and for businesses, this means closingtheir doors to the public and laying off hundreds ofthousands of employees. The majority of those stillemployed in an office setting are now working fromhome, and this includes those with the challenge ofsuccessfully mediating and resolving disputes despite
the gnawing concern and unrest that comes with anational lockdown.
I admit I was originally opposed to telecommutingbecause I was concerned with not having the resourcesneeded to conduct productive mediations. I feel I am atmy best when I am connecting with people, assistingparties to resolve their issues and helping them findcommon ground. With COVID-19 essentially forcingpeople to work from home, or causing them financialhardship, I felt that this obstacle would significantlyhinder the mediation process, and I felt I would belimited in being able to ensure that both parties couldwalk away with the best outcome. Nonetheless,employment discrimination mediation sessions need tomove forward as scheduled. And, they are.
The question is, how does a mediator help partiesreach a successful outcome when most businesses arestruggling to remain afloat during this pandemic? Theshort answer: creativity. In all actuality, professionalsin the Alternative Dispute Resolution field have been
Mission StatementThe mission of the Civil Rights
Division is to reduce discriminationin employment and housing through
education and enforcement.
VisionThe vision of the Civil Rights Division is to help create anenvironment in which the people of the State of Texasmay pursue and enjoy the benefits of employmentand housing that are free from discrimination.
Page 2Civil Rights Reporter
May 2020
using various tools and methods to assist with resolvingcases for years. Now, due to COVID-19, I am havingto reach deep down into my tool chest to locate buriedtools that I have not used in some time. While this isnot a negative thing, it is not a positive either. “It iswhat it is”, as my niece would say. I have found thatusing older mediation methods has helped me toremember to listen to what is not being said. This older,yet effective method, combined with playing the devil’sadvocate, pointing out strengths and weaknesses ofcases, and creatively thinking outside of the box helpsme successfully resolve matters.
COVID-19 has significantly altered several facets ofour everyday lives. However, it seems that amid all
the challenges and fears, we may have stumbledacross a mechanism for creative change that manywhite-collared workers have long since needed.Example: Cutting out the commute. I have found that byremoving my daily commute via public transportation,telecommuting has afforded me the opportunity tomeet deadlines I would not have been able to meet ifI were in the office. I have also noticed a decrease inmy stress levels. Although the nature of my positioncan be stressful at times, I have noticed working fromhome has helped me be more relaxed and focused. Iftelecommuting is our new normal, I believe I may beable to accept and welcome it.
Photos courtesy Getty Images
Director’s Corner
A portion of the work that provided the basis for this publication was supported by funding undera Cooperative Agreement with the U.S. Department of Housing and Urban Development. The
substance and finding of the work are dedicated to the public. The author and publisher aresolely responsible for the accuracy of the statements and interpretations contained in this
publication. Such interpretations do no necessarily reflect the views of the Government.
Director’s CornerBy: Bryan D. Snoddy, Civil Rights Division Director
Page 3May 2020
Civil Rights are Immune to COVID-19In this battle against COVID-19, weare, for many in America, engagedin the epic and defining struggleof a generation. That struggle isdefined by and defines who weare and what we will become as apeople and a nation. Never beforehave we had both a health andcommunicable disease situation
evolve into an economic struggle for survival. What setsthis series of events apart from the Spanish influenzaof 1918 or the Great Depression era is that since thosetragic events, America, as a society and country, hasstated emphatically that how we treat the least of us willdetermine who we are and shall become as a country.During such crises, it would be easy to compromise themoral high ground to which we have staked claim forthe sake of maintaining the economy or in the name ofensuring that sickness does not overtake the ones welove and hold dear. But this is a false choice. The CivilRights Division must not shrink away from the duty tojustly and rightly enforce defending the ground of FairHousing and Equal Employment under the law withoutfear or favor. To do so, would permit an assault on theintegrity of the system of impartial application of the law.
While modern civil rights had not yet been exposedduring Franklin’s era in the 1750s, Benjamin Franklin,from a letter that he is believed to have written on behalfof the Pennsylvania General Assembly, stated, “Thosewho would give up essential liberty to purchase a littletemporary safety deserve neither liberty nor safety.”Some have intuited that the statement was meant toexplain how there could be a balance between libertyand safety. But that could not be more in error.
In a short bit of a history lesson, Franklin was writingabout a tax dispute between the Pennsylvania GeneralAssembly and the family of the Penns, the proprietaryfamily of the Pennsylvania colony who ruled it albeitremotely. As the legislature was attempting to taxthe family lands to pay for frontier defense during theFrench and Indian War, the family wished to strike adeal, to quite literally, pay for (purchase) the governingstructure to provide a haven against taxing their landin exchange for some funding of the defense. Franklinunderstood that the government could enter into thebargain, but simply noted that it was neither good norjust. And, in fact, it was no compromise at all. Becauseit was a betrayal of the very authenticity of thegoverning structure.
In many instances of crisis, we are faced with the samefalse Hobbesian struggle. No quarter can be givento the fair and equitable enforcement of the law lestwe cede the foundation of the ground upon which weclaim to stand. In short, Covid-19 is not an opportunityto shrink or modify the protections of the law but it isrightly a sacred place to ensure that every Texan hasa voice - whether they seek to provide or engage inemployment or seek shelter or the provision of fairhousing. The notion that we could strike a balance andcompromise the integrity of that impartial sanctuarydoes not exist.
It is only right and just that we maintain our vigilanceagainst unlawful discrimination at home and in theworkplace. Balance and compromise of the law issimply not a choice. It is as unfair to the housingprovider as it is to the employee laying grievance.All parties under the law should expect equal protection
of the law and the current crisis provides no justificationto alter that bedrock principle.
If an individual feels that they have been discriminatedagainst as a result of the COVID-19 crisis, whetherat home or in the workplace, the Civil Rights Divisionhas the imperative duty to examine and divine thefacts to ensure that the law is followed. Likewise, allhousing providers and employers may find specificCOVID-19 guidance respectively from our UnitedStates Department of Housing and Urban Development(HUD) and Equal Employment Opportunity Commission(EEOC) partners at https://www.hud.gov/coronavirus and https://www.eeoc.gov/coronavirus/.
Together, we can keep Texas strong and come throughthis crisis without compromising values or rights andsecure a future that is worthy of this great state.
Complying with Texas Labor CodeAnti-Discrimination Laws During a Pandemic
By: Ellena E. Rodriguez, OCR Manager
Employers cantake additionalhealth and safetyprecautionsduring apandemic - suchas checkingworkers’
temperatures - but they still mustfollow workplace anti-discriminationfederal and state laws, such asTexas Labor Code, Chapter 21(formerly known as the TexasCommission on Human RightsAct of 1983). Human Resourceprofessionals, Business Owners,Managers, etc. … shouldperiodically check for EqualEmployment Opportunity (EEO)updates on coronavirus-relatedrules and resources as the crisisevolves.
The Civil Rights Division (CRD)wants you to know that weare continuing to enforce thenation’s and Texas’s employmentnondiscrimination laws whileensuring that all our activitiesare consistent with public healthguidelines.
The CRD enforces laws that prohibitemployment discrimination includingthe Americans with Disabilities
Act (ADA), Age Discrimination inEmployment Act (ADEA) and TitleVII of the Civil Rights Act of 1964.
Disclosing Employee Data toPublic Health Agencies
What information can an employerdisclose to a public health agencywhen a worker is diagnosed withCOVIE-19 (the respiratory illnesscaused by the coronavirus)? TheEqual Employment OpportunityCommission (EEOC) saidbusinesses can provide anemployee’s name to a public healthagency without running afoul of theADA. Temporary staffing agenciesand contractors that place workerswith a client may notify a clientwhen an employee has COVID-19.
As a best practice, employersshould limit the number ofpeople who know the name ofthe employee and should notdisclose the employee’s identifywhen notifying co-workers andother business partners who mayhave come into contact with theemployee.
(National Law Review)
Additional Questions Permitted
In updated guidance, the EEOCsaid employers can ask workers ifthey have experienced COVID-19related symptoms beyond a feveror cough, such as loss of smellor nausea, and other symptomsthat public health officials havedetermined to be connected to therespiratory disease. Employers mayalso keep COVID-19 related medicaldata in existing medical files. Pleasenote, however, that employers cannot rescind job offers to certainapplicants, such as pregnantwomen and older workers, solelybecause they are at a higher riskof infection.
(Bloomberg Law)
Precautions to FightDiscrimination
Educating your workforce on thenature of the virus is important toward off potential stigmatization,misunderstanding or overreaction.The U.S. Center for Disease Controland Prevention (CDC) has urgedthe public to stay calm and stopmisinformation from spreading. Forexample, being Chinese or Asian
Copies of this publication (05/2020) have been distributed in compliance with theState Depository Law, and are available for public use through the Texas State Publication
Depository Program at the Texas State Library and other state depository libraries.
www.texasworkforce.org
American does not increase thechance of getting or spreadingCOVID-19. Viruses cannot targetpeople from specific populations,ethnicities or racial backgrounds.
(SHRM Online)
Civil Rights Division’s programs provide an avenue for current andformer employees (or people whoapplied for employment) to file acomplaint if they believe they havebeen discriminated against in anemployment transaction. We arehere to assist you if you believethe treatment you received fromthe employer was because of yourrace, color, national origin, age,religion, sex, disability, or becauseof retaliation for participating and orfiling a discrimination complaint.
CRD conducts neutral investigationsand gathers information todetermine if discrimination hasoccurred under the Texas LaborCode. We work in cooperationwith the federal Equal EmploymentOpportunity Commission (EEOC) toresolve employment discriminationallegations.
Feel free to complete theEmployment Discrimination Complaint Form from our website ifyou believe you were discriminatedagainst for any of the reasons listedabove.
When an employment discriminationcomplaint is submitted to CRD,it is automatically submitted withEEOC through our Work-SharingAgreement. Please be advised, one
cannot submit with both the CivilRights Division and EEOC.
Once a signed charge is received,you and the Respondent will receivean invitation to mediate. Mediation isa voluntary process that allows bothparties to discuss their issues witha neutral mediator. The mediator’srole is to provide assistance inresolving the dispute in a mannerfavorable to all parties. Mediationwill take place virtually, involving theinternet and or phone. If both partiesaccept the mediation invitation, ameeting will be scheduled with ourmediator.
Lastly, CRD offers a varietyof comprehensive, interactivepresentations and training programsto provide practical understandingof Equal Employment Opportunity(EEO) laws impact on employmentdecisions and how to comply.
For additional information, or toschedule an EEO presentation ortraining, please contact the CivilRights Division by phone at (512)463-2642 or email: [email protected]
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Photos courtesy Getty Images
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