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From AI to Mental Health with EEOC's Keith Sonderling


Recorded live at the HR Tech Conference from the Fuel50 booth in Las Vegas, Chad & Cheese are joined by Keith Sonderling, EEOC Commissioner. We're talking the impact of AI and technology on HR and employment, including issues like remote work accommodations, discrimination claims, and the increasing use of generative AI. Sonderling breaks down the importance of considering the legal and ethical implications of AI in the workplace and urges HR pros to engage in the interactive process when addressing accommodation requests. He also discusses the rise in retaliation claims and shares details about the EEOC's first AI-specific case involving a hiring website. To learn more about the EEOC, visit www.eeoc.gov. Commissioner Sonderling can be found on LinkedIn at www.linkedin.com/in/keith-sonderling. To learn more about Fuel50, visit https://fuel50.com.


PODCAST TRANSCRIPTION sponsored by



Chad: Coming to you live from the Fuel50 booth at the heart of HRTech, it's The Chad & Cheese Podcast. We are diving deep into the world of HR technology, tackling workforce challenges with innovative solutions and we'd like to give special thanks to Fuel50, the science-based talent marketplace that bridges skills gaps, unlocks hidden potential and supports better retention and engagement. Let's do this.


Music Intro: Hide your kids. Lock the doors. You're listening to HR's most dangerous podcast. Chad Sowash and Joel Cheeseman are here to punch the recruiting industry right where it hurts. Complete with breaking news, brash opinion and loads of snark. Buckle up boys and girls. It's time for The Chad & Cheese Podcast.


Joel: Oh, yeah. It's your parole officer's favorite podcast, AKA The Chad & Cheese Podcast. I'm your co-host, Joel Cheeseman, joined as always, Chad Sowash. We are live...


Chad: Hello.


Joel: At HRTech from the Fuel50 booth and we are happy to welcome for his fourth appearance...


Chad: Fourth!


Joel: On our show, the fifth one when he gets a velvet jacket.


Chad: Going for the jacket.


Joel: He gets a jacket. So he's on his way. Keith Sonderling, EEOC commissioner. Keith, welcome

to the podcast again.


Keith Sonderling: Thank you for having me back.


Chad: Friend of the show.


Keith Sonderling: For the fourth time. I really appreciate it.


Joel: Friend of Chad and Cheese, he's a Focker. He's a proud Focker.


Keith Sonderling: And that's right. And I also have to mention, of course, at HRTech in a full suit and tie for The Chad & Cheese Podcast...


Joel: Yeah, you don't stick out at all.


Keith Sonderling: I see you're your cool T-shirts.


Chad: So it was funny because he was coming down the escalator yesterday when we were meeting him just to kind of say, hey, we're going to check out tomorrow.


Joel: It was kind of a Trumpian coming down the escalator...


Chad: He's coming down the escalator. He didn't have the tie on.


Joel: With the Sbarro pizza in the background.


Chad: And it was funny because Joel was like I can't believe he's wearing a suit. I'm like of course he's wearing a suit.


Keith Sonderling: Got to play the part.


Joel: So Keith, it's your fourth show. Some people don't know you. Just give us a quick Twitter bio about you and what you do.


Keith Sonderling: Sure. I'm Keith Sonderling, Commissioner at the United States Equal Employment Opportunity Commission.


Chad: That's a mouthful.



Keith Sonderling: EEOC, as you all in HR know it.


Chad: There you go. There you go.


Keith Sonderling: The charge of discrimination coming across your desk and that's us. Before joining the EEOC, I was the Acting and Deputy Administrator at the Wage and Hour Division.



Chad: That sounds like fun.


Keith Sonderling: Also something very familiar to HR professionals. And before that, I was an employment lawyer in Florida defending HR professionals...


Joel: There you go.


Keith Sonderling: In cases against the same government agencies. So I've seen both sides of the equations and...


Chad: Both sides. Both sides.


Joel: And a Florida grad. We don't have confirmation on the Tim Tebow tramp stamp, but we will eventually get him to a pool where we find out what's going on.


Chad: What's the name of the mascot? What's that gator? Is that...


Joel: Gators.


Keith Sonderling: Albert and Alberta.


Chad: Oh, yeah.


Joel: Wow, that's edgy.


Chad: So do you have Albert between the shoulder blades?


Keith Sonderling: That's a question I don't have to answer.


Joel: Yeah. So let's jump into it. Dude, you're everywhere. You're at Salesforce. You're at LinkedIn. You're here at HRTech. That's something that most past commissioners don't do. What's your goal? What are you finding? What are you hoping to learn and get out of all this traveling?

Keith Sonderling: It's really important for me to get out and leave DC because the action is happening around the country. And if I stay in the Washington DC bubble, I'm not going to be able to learn what HR professionals, what tech buyers, what tech developers, what tech funders, what the practical applications of these really advanced HR software and workplace technology tools, which as you know I believe is the future, is where all this is going. I'm not going to be able to be able to give the guidance and regulate in this area if I don't understand the community, if I don't understand what the concerns are, if I don't even understand what the products are that are being offered.


Chad: Yeah.


Keith Sonderling: So many times in DC, it's just hypothetical. Well, I believe tech vendors are making these kinds of products that are going to potentially discriminate and do this. And then you come to these shows and the reality of it is that technology doesn't even exist and they don't even, they can't even make programs that do what they're being accused of doing in Washington DC.


Joel: Yeah.


Keith Sonderling: So that's why it's so important for me to get out to talk to people to walk around these booths to really work with the vendors and help them in a sense too of saying that here's the problem in HR you're trying to solve. All of these problems as you both know have significant legal implications and how can I help give those tools and guidance based upon long-standing laws, nothing new here to actually have them be able to develop the technology to sell the technology and then more importantly the people buying the technologies, the companies, the HR departments, the questions they need answered as well when they buy all these products and suddenly it's in their portfolio.


Chad: Yeah.


Keith Sonderling: And then also most importantly we can't forget the users of these products, right? Who are the consumers here? It's the employees, it's applicants.


Chad: Yeah.


Keith Sonderling: And you know that's who we protect at the EEOC as well...


Chad: For the impact, right?

Keith Sonderling: The impact of that, so you can see how it really it's the entire ecosystem and it's so important for me to learn all the different perspectives that come with that or we won't be able to do our jobs in DC.


Joel: Are you doing a secret shopper kind of thing, because you stick out like a sore thumb.


[laughter]


Keith Sonderling: I probably shouldn't have worn the full suit.


Joel: Hi, I'm HR, here to ask you about your unbiased solution...


Chad: Would you like a Chad & Cheese t-shirt?


Keith Sonderling: Maybe I need to go a little more undercover but no.


Chad: There's a lot of fear around AI. We're seeing it in DC, we're seeing it throughout practitioners are afraid. I it's one of the things where you are now digging into it. Should they be that afraid of AI and large language models?


Keith Sonderling: The fear that concerns me or they shouldn't be afraid, they should just say, well, okay how are we using this?


Chad: Yes.


Keith Sonderling: What purpose are we using it for and how is it going to impact my workers? And that's the questions that they should be thinking about when they're buying, when they're figuring how to develop this and those are long-standing questions that HR professionals and talent acquisition has been asking for any kind of recruitment tool.


Chad: Yeah. So it's no different.


Keith Sonderling: But before AI, before computers, before any of this was on the internet, when you're just doing employment assessments on pencil and paper, there were considerations there. Is this actually going to make a productive workforce or is this going to be a tool that discriminates and that outside of technology has existed for a long time. We need to just go back to that thinking when it comes to these technologies. Here's what I know in HR, here's the impacts of whatever program I'm doing and now because of the scale of Generative AI, the scale of technology, it's just much higher stakes.


Chad: That's the key, right? So when we moved from paper and pencil, paper and pen applications to the internet, we saw huge scale, huge in scale, so we were able to get more qualified and more candidates into our systems, but we couldn't manage that very well which is where the black hole came from and there are also regulations and things, the internet applicant rule, a lot of things happened because of that, but that scale was like step one. This is like the next step of scale, right? So we've seen this before and this is what I'm hearing from you. We've seen this before. Don't be afraid. We have to be able to understand, where you guys come in to educate and then enforce if the education's not taking.


[laughter]


Joel: And then arrests.


Keith Sonderling: And then arrests. Wow.


Joel: He has handcuffs in his back pocket.


Chad: I don't think I've seen anybody...


Joel: So you better behave yourself, Chad.


Chad: In an orange jumpsuit, due to the EEOC. Have we?


Keith Sonderling: Yet.


Chad: Yet. Oh yet.



[laughter]


Joel: Please let us know when they're putting that out.


Keith Sonderling: I'll give you a warning. But you know, in all seriousness, relating to issues like for Generative AI now and all the buzz at these conferences is how Generative AI is gonna make your workers more effective. How you'll be able to eliminate positions by incorporating Generative AI. And in your podcast, you talk about all the time, about all the newspaper articles saying X amount of employees are gonna be laid off or a company's saying, well, we're gonna completely not hire for this position anymore because we could use Generative AI. What we're seeing with some of the striking workers in Hollywood related to fears of Generative AI but let's just break that down what it's actually doing to where HR professionals and talent acquisition understand. So if you're saying, if you're in TA now and your boss is saying, okay, we're no longer going to hire for this position because we're gonna use Generative AI, or you're on the other side of the house, we're saying now we need to lay off these workers because the computers can do it faster.


Joel: Yeah.


Keith Sonderling: Who is that gonna impact? Right? So if you're laying off certain groups, what are the breakdowns on protected characteristics such as race, sex and ethnicity and how is it gonna impact those groups? So before you're saying, well, let's just wipe out this entire team. You think about how much money companies spend on diversity, equity and inclusion, getting in young, new, diverse, talented workers from applicant pools that they've never seen before. So you spent millions and millions of dollars and all this software to get in a diverse workforce. Now you have a decision to say, okay, we have Generative AI. We can now replace this workers who's getting impacted from these reduction in workforce. We've seen it before. Forget technology. First in, first out.


Keith Sonderling: Older workers who are making a lot more than some of the younger workers because they've been there longer. And that's the same implications that's gonna happen when you're talking about using Generative AI. So if you don't do it carefully, right? A theme we've talked about before, just the amount of care and time and effort it needs to take when integrating these softwares, what are you gonna have? You're gonna lay off a whole group, which is now gonna be your most diverse group that you've just done through your recruiting. And the impacts of that are gonna be discriminatory. Or you're saying, well, the older workers, they may be impacted because they don't understand the technology as much. We don't wanna spend more resources to go out and train them. That can be age discrimination. And that is not much different than we've seen in reduction in workforces in the past. How certain groups get broken down. So I think there just needs to be a lot extra care when you're talking about the Generative AI replacing workers or even making workers more efficient, right? Think about that. Now, ChatGPT is gonna make your job 80% more efficient. Well, you need to learn how to do it and that may be difficult for disabled workers if they don't have the accommodations necessary. So again, it's a lot of those basic HR principles that we can't lose sight of just because it's new technology.


Chad: So I'm gonna flip the, the script real quick. One of the reasons why disabled workers are having a moment right now is because they were able to work remote, right? Now, we have all these companies who are moving everybody back into the offices and that is not something that many of these individuals can actually do. So therefore from your standpoint, are you actually, you and the team looking at how this move back to the office is bad from a diversity, equity, and inclusion standpoint and negatively impacting individuals with disabilities who are doing the job at record levels.


Joel: And these are people hired remotely.


Chad: Yes.


Joel: Thought their job would always be remote.


Chad: Exactly.


Joel: And now the switcheroo, it's not.


Keith Sonderling: And you're seeing a lot of articles on that.


Chad: Yeah.


Keith Sonderling: And let me just take a step back. You know, at the EEOC, the federal government, we can't

get involved in business decisions of whether or not your employees should work remotely or they should work in the office. The employers still have that, outside of a collective bargain agreement or a contract, which could be breach of contract claims in what you're talking about saying, well, my contract says I get to work from home, now I come to the office. Different story, right? Our perspective is whatever decision you make, whether you allow certain groups to work remotely, whether everyone has to come back in the office, that's up to you. But for those who can't come back to the office.


Chad: Yes.


Keith Sonderling: Because of a disability, you have to engage in that process. And what we're seeing now is so much pressure to get everyone back in the office.

Chad: Well, isn't that an accommodation and something that is normal for a company to talk about? Is it a normal accommodation for an individual who needs to be able to work from home?


Keith Sonderling: Right. But we never saw it before the pandemic...


Chad: Because they weren't working.


Keith Sonderling: Those accommodations. People weren't working remotely.


Chad: Yeah.


Keith Sonderling: People were coming to the office. And if you said, I don't want to come in the office five days a week, because I have fear about riding the subway system because let's just say, there's significant crime in my city now and that gives me anxiety, or I'm worried about getting the next strain of the virus, what would you say? Okay, come to work or you're fired. Get on the subway and get to work. You've never really seen those before. But now, this is really coming in to where employers can't just put those aside because they're really coming in under mental health claims, under the Americans with Disability Act, which you're alluding to. In that sense where before there was never a federally protected right to telework.


Chad: Yeah.


Keith Sonderling: Remote work. Now what we're seeing is that the claims are coming in because employers are saying, I can't come back to the office because I'm depressed related to coming back to my old world, that I'm so much more productive at home. I have a new life at home. That's one thing. But now, they're saying that my mental health is not allowing me to return to that world. And I've gone and sought treatment and I'm coming to UHR and saying, I am disabled under the Americans with Disability Act. And if HR departments and this is my key message when it comes to this whole conversation, if you're not empowered to go through that interactive process and if you are under pressure by your bosses to get everyone back in the office and you are ignoring those claims, because you either think they're ridiculous, they don't think they're right, that's not for you to determine.


Keith Sonderling: You have to engage in that process to see if that, here's the condition, the employee's coming, what are the accommodations related to this condition working with their mental health provider Or their MD, whatever it is And saying, well, maybe a remote work schedule is what that accommodation is. Maybe it's coming in at different hours. Maybe it's alternative commuting methods. Maybe it's having noise canceling headsets or having dim lights. The answer may not be remote work. But just engaging in that process with their healthcare professionals is what HR departments need to focus on. To your point, they know how to do that, but they have to be empowered to do that even though there's such a push to return to the office Because it is going to impact disabled workers more than others and we're really seeing the mental health claims rise significantly. And what do we mean by mental health at the EEOC? The top claims are anxiety, PTSD and depression. And we're seeing those claims really increase year after year. And that's where disability discrimination has been there for a long time, but we're seeing the types of claims coming in and a lot of that is simply just not engaging in that process to see what those accommodations can be.


Joel: Where is napping on the list? Because I'm waiting for that to be a disability that my employer recognizes.


[laughter]


Chad: 'Cause I don't recognize napping.


[laughter]


Joel: You guys have been in the news a lot with indictments and in cases that are being brought. What's the reason for that? Is there a trend on the kinda cases that you're seeing these days as opposed to years past?


Keith Sonderling: Yeah, well, we have had an uptick in litigation, and there was an uptick in charges of discrimination. And for our fiscal year 2022 increase, which went up 20% from the year before, a lot of those were related to the post-COVID vaccination claims. So everyone was always asking, tell us how COVID has impacted the workforce. Well, we had additional 10,000 religious discrimination charges related to employers, employees who did not wanna get the vaccine, and fighting over that. So we saw that blip related to there. So that's one reason for the increase there. But as far as litigation is concerned, you are seeing an uptick in those cases. And a lot of those, again, it's related to what those trends are. And we're seeing a lot of claims related to disability discrimination increase. In addition to the number one cause of discrimination in the United States year after year is, wanna take a guess? Oh, maybe I can, I'm taking over the podcast here.


Chad: Go ahead. Yeah, no, no.



Keith Sonderling: That's not how it works?



Chad: I'm not an expert in this. This is your job.


[laughter]


Joel: My gender affirming something or other.


[laughter]


Keith Sonderling: I was waiting for you to say something. But the number one claim of discrimination across the board, in all seriousness, is retaliation.


Chad: Ah yes, yes.


Keith Sonderling: And we're seeing that because it's tacked on to other claims. So you come in and say I wasn't paid the same as my coworker who's of different national origin. And the employer says, yes, you were and now you're getting paid less. Or yes, you were and now you're fired. So we really see those claims in addition to the underlying claims where you request an accommodation, or you claim you're not paid equally, or you claim you're discriminated against and then something happens to your employment. So we're seeing a combination of a lot of those in the litigations. So you have the underlying claim of discrimination and you have the retaliation and that just tacks on more causes of action for employers.


Joel: And you just had your first AI specific case. Talk about that and how it ended.

Keith Sonderling: So this was a case that we brought out of New York. And it was a company that was using their hiring website. And this is sort of the broader debate, which you'll hear about, what is AI? What is machine learning? Is this really AI or not? And most people would say, including me, that this was not AI. But listen to the facts here. So there was a company that offered, it was a Chinese company in New York, that offered English tutoring service in the United States. And their application system, which was just their website, somebody went and applied and they put in their birthday, immediately rejected. Same person went back...


Chad: Hello.


Keith Sonderling: And changed their birthday by a few years to be a few years younger and was immediately accepted. Now, none of us are machine learning PhD, MIT scientists, right? But I think the three of us collectively...


Chad: Can deduce.


Keith Sonderling: With our small computer brains...


Joel: We could crack pretty easily.


[laughter]


Keith Sonderling: Could probably make that code pretty easily. Right?


Chad: We could crack that code.


Keith Sonderling: This is my A-team here, bring in the best investigators, Chad and Cheese on the case. But you see here, I mean, that's just basic coding. That's not sophisticated algorithms, in the sense. So there...


Chad: They blamed the AI.


Keith Sonderling: They blamed the computers, they blamed the system. They also said that in other countries, they're allowed to do this.


Chad: It's not us.


Keith Sonderling: This doesn't fly, in that sense, where that's just straight age discrimination. But it goes to a

broader point, which we've talked about on earlier podcasts about how quickly, on the applicant side, that these cases can scale. So think about every person who's qualified for that job, that would have applied for that job and would have been rejected because of their age, or didn't see that advertisement because of their age, could be in a potential class of age discrimination against that employer. And that's why it's so critical in the talent acquisition space where having your systems ensuring that they're not automatically screening out people based on age, people based on gender, what these tools can allow you to do, or where you're actually doing your advertisement placements.


Keith Sonderling: And there's a lot of technology out there that's gonna help with diversity recruiting, getting job ads in different places. Well, if there is, whether it's a line of code, or the algorithm is designed not to show the advertisement, which of course is federally protected to certain groups, based on race, age, sex we really see this more in the age context, like new college grads, let's just go there. Everyone who is qualified for the job can be a part of that class of saying that they were discriminated against and the employer would be liable for not potentially hiring them. There's a complicated analysis to get there.


Keith Sonderling: But you see the value of these cases, how large they can get quickly. And then another part too, we did in one case, we made the employer use AI to go through in a job board to go through their system to make sure that there wasn't any discriminatory terms too close to each other that would preclude people to apply or not to apply. So you can see there's also good uses of this too, which we've talked about on the front end advertisement side. But we haven't seen the large scale cases yet. And why is that? It's because a lot of employees still don't know they're being subject to the algorithms. They don't know whether it's an interview, whether their natural language process is looking at what they're saying, that consent requirement, which we don't have yet.


Keith Sonderling: Until we see that, I think it's gonna be very hard for these cases to come to us. Because don't forget when you come to the EEOC, you're just claiming discrimination based on protected category. So you're coming in saying, I was discriminated based on my age. There's not a box that says technology discrimination. Just like earlier on, there wasn't COVID discrimination. So we have to then do the investigation to see, well, was this COVID related? Was this technology related? And that takes time and resources. So until you see changes in the law and consent, or employers start doing consent, you'll start correlating some of these cases that will come in.


Joel: Keith, thanks for popping in.


Chad: There it is.


Joel: We know you're a busy guy visiting a lot of companies and people and employers.


Chad: Be on the look out.


Joel: For those listeners that wanna connect with you, maybe have some questions, where would you send them?


Keith Sonderling: Find me on LinkedIn. I'm happy to connect on there.


Joel: Soon to be sporting a Chad & Cheese smoking jacket on his LinkedIn profile.


[laughter]


Joel: Chad, it's always fun to sit down with Keith. We out.


Chad: We out.


Outro: Wow, look at you. You made it through an entire episode of the Chad & Cheese podcast. Or maybe you cheated and fast forwarded to the end. Either way, there's no doubt you wish you had that time back. Valuable time you could have used to buy a nutritious meal at Taco Bell. Enjoy a pour of your favorite whiskey. Or just watch big booty Latinas and bug fights on TikTok. No, you hung out with these two chuggleheads instead. Now go take a shower and wash off all the guilt. But save some soap because you'll be back, like an awful train wreck, you can't look away. And like Chad's favorite Western, you can't quit them either. We out.


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