The United States Court of Appeals for the Second Circuit believes a hostile work environment claim resulting from implicit bias training should not have been dismissed by summary judgment. Bipartisan legislation has been introduced that would eliminate the subminimum wage that can be paid to individuals with disabilities. Senate Democrats on the Health, Education, Labor, and Pensions Committee have issued a report detailing the impact that artificial intelligence may have on jobs. An EEOC commissioner and the head of the Occupational Safety and Health Administration have been confirmed by the Senate.

Appellate Court Reinstates Hostile Work Environment Claim – The United States Court of Appeals for the Second Circuit reversed a summary judgment finding in a hostile work environment claim based on racial statements made during implicit bias training. In the case of Leslie Chislett v. New York City Board of Education, the Second Circuit stated a jury “could find that discriminatory conduct at the DOE was sufficiently severe and pervasive to have created a hostile work environment.”

Leslie Chislett, who is Caucasian, worked as an educator at the Department of Education (DOE). In 2017, she was asked to serve as the Executive Director of the “AP for All” program, which was an initiative with the goal of expanding access to AP classes. She was required to participate in implicit bias training. The Second Circuit cited several examples from the implicit bias training that could make Caucasian employees feel uncomfortable.  She expressed concern on several occasions to her supervisors who took no action. In 2019, she was relieved of her supervisory responsibilities although her title and pay remained the same. At a subsequent staff training retreat, she was verbally attacked resulting in her requiring short term disability leave to obtain medical treatment for her emotional distress. She subsequently resigned from the DOE.

Leslie Chislett brought this action under 42 U.S.C. Section 1983 alleging among other claims that  she suffered a hostile work environment fostered by mandatory implicit bias trainings. The defendant was granted summary judgment dismissing all her claims and Ms. Chislett appealed to the Second Circuit. The Second Circuit concluded that she “presented evidence of racially charged statements expressed during trainings, in meetings, and about another employee in her presence, creating a genuine dispute of material fact about whether the workplace was racially hostile.” In remanding the case to the District Court, the Second Circuit noted that the evidence created a question of fact that should be decided by a jury.

Bipartisan Legislation Would Eliminate Use of Subminimum Wage – The “Transformation to Competitive Integrated Employment Act” (H.R. 4471, S. 2438) has been introduced by a group of bipartisan members of Congress including Representative Robert Scott (D-VA), Representative Pete Sessions (R-TX), Senator Chris Van Hollen (D-MD), and Senator Steve Daines (R-MT). The sponsors of the legislation believe that “every working person should be paid the full federal minimum wage.” 

Section 14(c) of the Fair Labor Standards Act (FLSA) allows employers to receive special certificates from the Department of Labor (DOL) allowing them to pay individuals with disabilities less than the minimum wage. Seventeen states have passed laws eliminating the use of subminimum wages. This bill would phase out the payment of subminimum wages over five years. The bill would establish a state grant program designed to support states with transitioning those Section 14(c) certificate holders to “competitive, integrated employment for individuals with disabilities” that pay at least the federal minimum wage. The bill has been referred to the House Committee on Education and the Workforce and the Senate Committee on Health, Education, Labor, and Pensions.

Senate Democrats Issue Report on AI Impact on Jobs – Senate Democrats on the Health, Education, Labor, and Pensions (HELP) Committee issued a report predicting that artificial intelligence (AI) and automation, according to a model developed by ChatGPT, could replace about 100 million jobs over the next ten years. Among the hardest hit by job losses would be fast food and counter workers (89% job loss), accountants (64% job loss), and truck drivers (47% job loss). The report acknowledges that “There is tremendous uncertainty about the real capabilities of AI and automation, their effects on the rest of the economy, and how governments and markets will respond.”

To ensure that workers benefit from AI and automation, the report makes several recommendations:

• Implement a 32-hour work week with no loss in pay,
•  Share profits with workers and expand employee ownership of businesses, through the establishment of Employee Stock Ownership Plans (ESOPs) or Eligible Worker Owned Cooperatives,
• More than double union membership by passing the Protecting the Right to Organize (PRO) Act,
• Guarantee paid family of at least 12 weeks and a minimum of 7 days of medical leave, and
• Bring back defined benefit pension plans.

Senate Confirmations – By a vote of 51 – 47, the Senate has confirmed Brittany Panuccio as a commissioner for the Equal Employment Opportunity Commission and David Keeling to be the Assistant Secretary of Labor for Occupational Safety and Health.

Ms. Panuccio was confirmed for a term that expires on July 1, 2029. She served previously as an assistant U.S. attorney for the Justice Department in Florida and prior to that worked in the U.S. Department of Education’s civil rights and general counsel offices. The confirmation is significant since it restores a quorum to the EEOC that enables the commissioners to vote on issues that require their approval. 

Mr. Keeling worked previously for Amazon as director of road and transportation safety and for the United Parcel Service in safety roles including the vice president of global health and safety. During his confirmation hearing before the Senate Committee on Health, Education, Labor, and Pensions (HELP) he set forth three priorities if he was confirmed. They consisted of 1) accelerating the pace of modernization in the area of regulatory oversight and rulemaking to utilize technology and predictive analytics focusing on injury prevention, 2) expanding OSHA’s leadership in fostering cooperation and collaboration between professional groups, companies, and unions, and 3) using data to enhance on-site safety efforts.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.