This Week on the Chad & Cheese Podcast: Keith Sonderling Tells All
Buckle up, folks—this one’s a wild ride. Former EEOC Commissioner Keith Sonderling joins Chad & Cheese for an unfiltered (and occasionally eyebrow-raising) look at the workplace circus we call 2025.
What’s Inside:
Discrimination Through the Years: From ageism after the 2008 crash to the pandemic’s “suddenly religious” workforce. $30 for an online blessing? You bet Keith’s seen it all.
Remote Work Meltdowns: Anxiety about commuting? PTSD from small talk by the watercooler? Keith explains how HR is navigating a workforce that would rather Zoom in their pajamas.
AI in HR: Want a hiring tool that promises to be bias-free but might still discriminate like your boomer uncle? Keith has thoughts—lots of them.
Generational Showdowns: Gen Z says they’re “leading with their mental health,” while Boomers roll their eyes and tell them to “rub some dirt on it.” Who’s right? (Hint: Everyone’s annoyed.)
PODCAST TRANSCRIPTION
[music]
Joel Cheesman: I'm Joel Cheesman. He's Chad Sowash. And I want you to help me welcome to the stage, the man.
Chad Sowash: Former.
Joel Cheesman: The myth. We call him the Commish, the Ayatollah of Rock and Rolla, Keith Sonderling.
Keith Sonderling: Oh, man.
Joel Cheesman: Too early. Too early.
Keith Sonderling: These are the guys you want waking you up.
Chad Sowash: And also sixth in our fantasy football league.
Keith Sonderling: That's right.
Chad Sowash: Just so you know.
Keith Sonderling: Now that I'm not in the federal government anymore, so I can engage in your gambling.
Joel Cheesman: He gets to play. He gets to play. Good morning, everyone.
Audience Members: Good morning.
Joel Cheesman: Is that too much?
Chad Sowash: Wide Awake. I love it. That's good. Coffee. Everybody have. The drinks. Come on in, everybody.
Joel Cheesman: Plenty of seats.
Chad Sowash: We've saved the best for last.
Joel Cheesman: Let's meet Keith, shall we?
Chad Sowash: Yeah.
Joel Cheesman: Who is Keith Sonderling?
Keith Sonderling: I don't know anymore.
Joel Cheesman: You don't know anymore. Say more about that.
Keith Sonderling: Hi, everyone. I'm Keith Sonderling. I just finished up being the commissioner at the Equal Employment Opportunity Commission, where I was there for four years. Before that, I was at the Department of Labor. I was the Deputy and also the acting Wage and Hour Administrator. I was there for three years. And before joining the government in 2017, I was a labor and employment defense attorney in Florida. So I've lived this world. I know your world, both from being on your side, being on the other side. So I have a unique perspective across two agencies that I know outside of your federal contracting practice, also, you have to deal with all the time.
Joel Cheesman: So no pressure. But, Jeremy, you weren't here on day one. I know. Because you're a busy guy. But he said the reason we have the former EEOC guy is because he's not tied to the script. He's going to name names. He's going to be open and honest. So no pressure, but the groundwork has been laid.
Keith Sonderling: Chatham House Rules. Not recording at all.
Chad Sowash: Yes, because we're a podcast. We don't record stuff.
Joel Cheesman: He just got really nervous.
Chad Sowash: So how does it feel to be out?
Keith Sonderling: It's nice. I'm not really out because I'm still coming to HR conferences and I just can't get enough to talk about HR compliance at 8:00 AM in the morning on a Thursday.
Chad Sowash: You lucky bastard. So why don't we go ahead and start talking about trends? Start talking about trends, what you've seen. I mean, they're at the EEOC.
Keith Sonderling: Yeah. So, the EEOC is unique in the sense where it applies to all industries, whether or not you're a federal contractor and both the private sector, state and local and federal government. So, really from DC at the EEOC, we're in a position to see what all the trends are in HR across industry, across the country because whether you know it or not, employees cannot go directly to court. Whether you're state, federal or a private sector employer, have to come to the EEOC.
Keith Sonderling: So we literally see every single case of discrimination. And it puts us in a position to come out here and actually talk to you what those are, to get ahead of it and see what the trends are, where things are going and where things have been, which is what I really want to talk about this morning. So if you look at the state of employment discrimination going back to, I like to start around 2008 to 2010, after the recession. We saw a huge spike in discrimination claims. So between 2010 and 2012, it was record high discrimination charges every single year, around 100,000 plus charges at the federal level.
Keith Sonderling: And you look back and say, why did this happen? Because at the time, it's a little different than now where people lost their jobs, after the economy tanked and there wasn't really anywhere else to go. You couldn't find a remote job paying more at that point. So a lot of people were coming to the EEOC. So we saw a lot of recessionary era discrimination claims that made those so high. And then looking specifically at that, where we came out of that, it was a lot of age discrimination because a lot of the reduction in workforces impacted older workers because they were being paid more. And it's an easy metric.
Chad Sowash: Was that the biggest chunk that you saw?
Keith Sonderling: Yeah, it was a very large chunk. Well, it was just across the board. But age certainly was impacted significantly. So then, like for all of you as HR compliance professionals, even at the EEOC, there's a lot of distractions. So say, okay, now we need to focus on age discrimination, because that is what happened coming out of the recession. And the next thing you know, the Me Too movement happens, so around like 2015, 2016. So then it's all about sexual harassment in the workplace, preventing it, enforcing those cases, and then we saw record sexual harassment cases at the time. And then, you start focusing on that.
Keith Sonderling: And then the US Women's soccer team makes global news about not being paid equally. And then it's all about pay equity. And then COVID happens and it's all about accommodations and vaccinations. And then George Floyd, then it's all about racial discrimination. So there's always something too, like all your professions where you have to shift your resources there across the board. So anyway, historically, from where we were in the early 2010s of that 100,000, right before the pandemic, discrimination was really, really going down. So around 2019ish, early 2020, the charge of discrimination went all the way down from that 100,000 peak to around 63,000. And I looked at it as a really good thing. And, you know, less discrimination is good. That means all of you in HR are being...
Chad Sowash: Being told.
Keith Sonderling: Empowered to be able to actually do your jobs. And employees are feeling that they're able to come and file a charge of discrimination or talk to HR to remedy it. And other people, and we'll talk about the political nature of this area, and other people are saying, well, there must be some other reasons for it. Maybe they're just going to get another job, maybe they don't feel comfortable and that systemic discrimination is going to occur. Whatever the reason was, it started really significantly to go down.
Keith Sonderling: But since then, and the pandemic played a large role in this to where we are today, it's creeping up every single year. So it went from 63,000 to 70. Excuse me, to 67,000, and then another big jump in the 70,000s to where this past fiscal year, it was at 81,000. So we're going in the wrong direction. Charges of discrimination are starting to go up again, and we're starting to see a lot of discrimination complaints. Almost now 20,000 more than we were a few years ago.
Joel Cheesman: What's the flavor of those? Have they... The flavors...
Keith Sonderling: This is where it's so difficult and it's so dependent upon what's going on. So if you look, everyone wanted to know, how did COVID impact discrimination claims?
Joel Cheesman: Yeah.
Keith Sonderling: In the middle of it, right? So I get there and then everyone's like, it's the middle of COVID. Tell us what charges are coming in related to COVID. And it's really difficult in this area too, because as you all know, employees generally have 300 days to file a charge of discrimination alleging employment discrimination. And then, unfortunately, you probably, you wouldn't be in HR if you haven't seen a charge of discrimination against your company or seen that form. On there, it only has sex, age, religion, national origin.
Keith Sonderling: So everyone during COVID is saying what's happening? And there wasn't a box for COVID discrimination, right? So we actually had to see when those cases came in and then actually do some investigations to see what the issues are. But you talk about something globally, how it impacts employment discrimination, the big takeaway from COVID was religious discrimination. And we had an additional 10,000 charges of religious discrimination related to the vaccine mandates.
Keith Sonderling: And then that all required everyone in HR to suddenly not only be in the business of having to put these policies out to mandate vaccines in areas outside of healthcare for the first time, but for the first time again outside of health care. HR departments had to question their employees' faith because every employee who didn't want to get the vaccine suddenly became very religious, went on the Internet for $30 and got a...
Joel Cheesman: Don't we all.
Keith Sonderling: And got the letter from the church of Internet saying, I'm religious, even though you have their social media accounts and you're friends with them and they do very unholy.
Chad Sowash: We started this. We started the church of...
Joel Cheesman: Unholy things.
Chad Sowash: We started the church of Chad and Cheese.
Keith Sonderling: Right, exactly. For 30 bucks, get that. But in all seriousness, it just shows where you don't know which area is going to be the next hotspot. And because of that, the year before the COVID vaccines, religious charges were only 3.4% of all charges. The next year, it went to 19% of all charges nationwide. So you get to see something like that just can explode, and it completely shifts the dynamics of what that the most amount of claims are that year, which also drives where you need to spend money internally within your organizations on compliance. So it's so keeping up with these trends that's so important and also getting ahead of some of those issues.
Joel Cheesman: So if we're looking at trends going forward and one of the things we talk a lot on the show about is the return to office phenomenon. And I know, I want to say the Pregnant Workers Fairness Act was recent. Was that a part of the return to office? And are we going to see more sort of return to office cases come into play as companies make workers go back?
Keith Sonderling: Yeah. So this is the hottest issue still across the board in HR, no matter what industry you're in, is the return to office policies. And just to set the groundwork because there's so much confusion about where employees are allowed to work and how we got here, and just taking a step back, everyone needs to know, outside of an executive contract or a collective bargaining agreement, employees have no right to work from home. And we've lost sense of this, that all of you still control, it's a legal term, the essential functions of the job. So if you want your employees in the office seven days a week from 9:00 AM to 9:00 PM you can demand that. Will they all immediately quit? Absolutely. But just don't lose sight of the fact that if you believe it's necessary for your business, people to come to the office, you are still allowed to do that in HR. And I think we've lost some of that with the whole employee experience and the shifting dynamics.
Chad Sowash: And wanting to keep really good talent. Yeah, no. We've lost.
Keith Sonderling: I mean, all that.
Chad Sowash: We've lost a lot of that. Yeah.
Keith Sonderling: But that's just the... Let me just be a lawyer for a minute. Just say you can do whatever you want.
Chad Sowash: So what he's saying...
Keith Sonderling: And you'll deal with.
Chad Sowash: [0:10:09.6] ____ to be less of a human, he has to be a lawyer.
Keith Sonderling: Right. You could deal with the consequences later. But in all seriousness, now as we see a lot of companies, especially in New York City and big cities, finance, tech in California, are demanding these return to office policies. It's really causing a lot of issues within the workplace, both for HR professionals who have to administer them, but for these employees, a lot of them who you recruited to be remotely. So people are very curious about where the law comes into this. And really, for the most part, employees just don't have that federally protected right to work from home. However, and this is where it's so important about the trends and where things are going. Employees are starting to get that right. And let me step back for a moment to understand again, to this conversation about the amount of charges that come in and how things shift over time. So I'm going to detour here to what I see the biggest trend in HR right now is disability discrimination, and...
Chad Sowash: Which could go hand in hand with remote work.
Joel Cheesman: Yep, yep.
Keith Sonderling: You're getting. That's exactly where I'm going.
Chad Sowash: Okay.
Joel Cheesman: Let's explore the space.
Keith Sonderling: That's why you're a good interviewer.
Joel Cheesman: Let him go.
Keith Sonderling: Reading my mind. If you look at disability discrimination, generally, it's the number one cause of discrimination every single year at the EEOC. Does anyone know what the actual number one underlying cause of discrimination is at the EEOC every year?
Audience Members: Retaliation.
Keith Sonderling: Retaliation. Very good. This is a sophisticated crowd, though. It's not fair. So retaliation is the number one cause every single year across all labor agencies, not just at EEOC, at Waging Hour, at DOL, at National Labor Relations Board, which is why a lot of employee groups thinks that the charge numbers are lower than they should be, because retaliation is the number one charge. But disability discrimination generally is the number one underlying cause of discrimination every single year. And the dynamics of disability discrimination are changing so drastically, where we think about disability discrimination historically, what do we think about, employees with illnesses, employees with physical disabilities, employees recovering from all sorts of diseases.
Keith Sonderling: And HR departments have gotten really good about the accommodations in that process, whether it's through [0:12:21.2] ____ JAN or a lot of these other services, that if somebody is missing a limb, you know exactly how to deal with that and what adaptive equipment you need to buy. But we've seen such a shift from physical disabilities to mental health in the charges that we've seen, to the point where if you look at all of our disability claims, right now, 36% of all... Americans with Disability act claims that come to the EEOC are related to mental health. And think about all the illnesses, all the diseases out there, everything that would qualify somebody for a disability accommodation, 36% of that is related to mental health. And the big drivers of that, the big three, which is almost 30% of that, is anxiety, depression, and PTSD.
Keith Sonderling: Technically, our categories of mental health, anxiety, PTSD, depression, schizophrenia, cumulative trauma disorder and manic depressive disorder, and then kind of a catch-all. So out of the anxiety, depression, and PTSD, that's almost 29% of all the charges in the ADA last year. And to put that in perspective, in fiscal year 1993, anxiety, depression, and PTSD was 0.1% of the ADA charges. Now it's 30%. Right? So this is where things are going and there's a lot of drivers to where we're getting here.
Keith Sonderling: Going back to the return to work, what we're now seeing is companies are mandating come back to the office four days a week, five days a week, and employees are saying, Well, I can't. Well, yes, you can. Get to the office. No, I have anxiety about my commute. I don't. I'm worried about getting the next virus if I ride the subway. Some of these cities are not safe anymore. And I have anxiety about potentially getting mugged outside of the office. Or I'm depressed at the fact of having to go back to the office and BS with my colleagues at the water cooler when I've been in my pajamas, locked in the basement and we've had record profits. Why are you doing this to me?
Chad Sowash: He's been watching you.
Keith Sonderling: Right?
Joel Cheesman: Yeah.
Keith Sonderling: You just look like that every day.
[laughter]
Chad Sowash: Wow.
[laughter]
Keith Sonderling: Haven't shaved in a year. All this stuff.
Chad Sowash: See what we have to put up with.
Keith Sonderling: But you know, that's they're coming, they're saying, why are you doing this? Now you're impacting my mental health and I can't, I PTSD about returning to the old way in this new work environment. Like, basically, why are you doing this to me? And employees are coming forward and they're saying, I can't come back to the office because I'm disabled under the Americans With Disability Act and you have to accommodate me. And here's where I'm seeing the biggest issue. For all of you in HR, your mandate, especially from these very large, well known companies, the CEOs on TV, the boards that are saying to the CHROs, we want everyone back in the office and get that plan back in the office.
Keith Sonderling: So now in HR, you're being graded in a sense of how quickly you're returning people to the office. And there's a tension there with the ability to actually do your job and be empowered to say, well, if you are claiming you're disabled under the Americans with Disability Act, what is your disability? We need to engage in the interactive process and go through all that. But what you're seeing is such a rush to get in there where whether or not you're believing the employee, just not even engaging that process because you need to get everyone back to the office is causing a lot of claims under the ADA of not engaging that process.
Keith Sonderling: And the reason I see that a lot of HR departments or companies are unwilling to do this is because they think the employee is going to win. So every time if an employee comes through and I have a mental health issue, I can't come back to the office, I want to work remotely, if you don't dive into it, you may think, well, the only accommodation we can do if we go through this process is to allow them to work from home. And that's not true. Say we both have anxiety and the analysis of what that accommodation, we both have anxiety, we go to HR, we both want to work from home, right? That's the only cure.
Keith Sonderling: And the analysis is actually much different. Not only working with your own medical providers, with their medical providers, because of course they're going to come with the accommodation to work from home, from their provider. And it's going through that analysis saying, well, you have this type of anxiety, I have this type of anxiety. For me to be able to work with that, with an accommodation would be maybe noise canceling Bose headsets, for you would be working in a dim light area, right? So going through that process, which you all know very well may actually lead you to give them accommodation where they're allowed to perform the essential functions of their job with their disability absent working from home and actually coming to the office. And look, the employees may not like that, but from your legal obligation, that's sort of where it ends. And we're not seeing that now because of this just rush to come back.
Chad Sowash: So no plan.
Keith Sonderling: And these pressures.
Chad Sowash: There's no plan. It's just get them in.
Keith Sonderling: And the plan is going back to basics, to what you would do with any other type of disability. But there's just such pressures now on HR to do this and it's really driving a lot of the mental health issues.
Joel Cheesman: I mean, forgive me for saying get off my lawn, but this sounds like a generational problem. Can you break down what we're seeing?
Chad Sowash: I don't think so.
Joel Cheesman: This sounds like a millennial problem.
Keith Sonderling: Well, actually it's funny because the next driver of mental health is related to the Gen Z in the workforce.
Joel Cheesman: Of course it is.
Keith Sonderling: Which is... And that's the attitude I'm going to give you a prime example of. You do not want Joel interacting with your Gen Zs to do the interactive process.
Joel Cheesman: You do not.
Chad Sowash: I can second that.
Keith Sonderling: Because the next driver of men's health is just this multigenerational workforce. I think there was a stat recently. There's more Gen Zs in the workforce now than boomer generations are one of them where they're really exploiting...
Chad Sowash: Millennial.
Keith Sonderling: Millennial. Yeah, it's getting pretty significant. And just the way they're working. Work has changed. They've always started on their phone. They're much more technologically advanced and they want a much different lifestyle and they're leading with their mental health, which other generations...
Chad Sowash: Did not.
Keith Sonderling: Never did.
Chad Sowash: Stuff it down.
Keith Sonderling: So what we're seeing now is claims from Gen Z related to their mental health that really HR departments need to be equipped with, regardless of how the claim sounds. So everything from... And I'll use Joel as the main manager here. So I'm Gen Z and I come to Joel and say, Joel, I have a lot of anxiety about my yearly performance review because I feel like I'm going to get a bad review and I need an accommodation not to have a yearly performance review.
[laughter]
Keith Sonderling: Please accommodate me.
Joel Cheesman: This is when I say rub some dirt on it and get back.
Keith Sonderling: Exactly. Okay, so we all laughed. Ha ha ha. And you're not going to laugh when the EEOC charge comes. And let me tell you why. As ridiculous as that may sound, and nobody's going to argue that it's not a part of your job to get a performance review. Or in all seriousness, we've all seen claims saying, I can't take more than one assignment at once, I can't work past 5:00 PM on Wednesdays because that's when I have my yoga classes. Just the absurdity of some of these coming in, which may sound ridiculous to certain generations, right? Like I can't take more than one assignment. Yes, that wouldn't have worked before. Or this, I don't want a performance review.
Keith Sonderling: If you laugh it off and they're saying, it's related to, I'm anxious about this, I'm depressed about this, you still have to go through that process. As ridiculous as the claims may sound to you, if they're being genuine about it, you still have to go through that and say, is there an accommodation for not having a performance review? And the answer is going to be no, you have to have a performance review.
Keith Sonderling: But if you completely blow by that process, and this is where it really takes a lot of training outside of HR, like you can sort of in HR, even though we all laughed, and I laughed too, at this accommodation, and you're all HR professionals, imagine what a manager somewhere in the middle of the country is going, at a factory is going to be there.
Chad Sowash: Gonna sound like that.
Keith Sonderling: Gonna sound like this guy and look like this guy.
[laughter]
Keith Sonderling: Maybe they'll shave, but...
[laughter]
Joel Cheesman: Damn, he wasn't like this.
Chad Sowash: He was not like this before.
Joel Cheesman: He's nasty.
Keith Sonderling: You could like beat me up now. There's nothing I could do about it.
Joel Cheesman: I know. Now you're fighting back.
Keith Sonderling: Before, it would be a federal crime, so...
[laughter]
Keith Sonderling: But in all seriousness, it really goes to outside of HR now, going to those managers and really having that kind of generational training, or it's just going to lead to these claims, even though they weren't actually entitled to an accommodation, but they were entitled to go through that process. And the good thing is that's what all of you as HR professionals know best. It's just whether it's the remote work, whether it's these Gen Z issues, it's going back to the fundamentals of engaging in those processes, as ridiculous as it sounds to you. Because if you don't, you're really going to have no defense to that.
Keith Sonderling: And then the other part of this too, which on the whole manager training outside of your offices as well, what we are seeing is that there's teams where, say, you have a group of five, a team of five people and a manager. So two of the five people request an accommodation to work from home. They actually have a reason to work from home. Doctor's approved. That's the only accommodation given. HR actually gives them the accommodation, which occurs. And then the manager and then the rest of the three members are in the office, and everyone's just sitting on their computers on Zoom or Teams, right, in a conference room because these two people aren't there, but everyone's in front of their computers or sitting in front of their office. It ends.
Keith Sonderling: And the other employees say, oh, it's really not fair that Chad gets to work from home and we're here. And then manager Joel goes, Well, Chad, just... You claim you're crazy too. You can go get an accommodation. Right. Why don't you just go tell HR you're crazy? I don't want to be here either. But look, these are not trained HR professionals. And that's happening. And what that does, in a sense where that manager should be trained and say, there's a process to request an accommodation in this company, through our handbook, through HR. If you feel like you need an accommodation, you need to go to HR versus the reality of it, say, yeah, it sucks. I'm here too. I'm the manager. I don't want to be here. We're just sitting on teams. It's not fair either. And then that's going to be not only a disclosure of unlawful disclosure of medical information, violate, interfering with their leave. So you get to see how it can spiral out of control way outside of your HR organization, even though you've done everything right on that side too.
Chad Sowash: What about all these people who were hired to be remote and they were disabled beforehand, and now they're being thrust back into the office.
Keith Sonderling: Yeah. And this is another big question about, especially during COVID where a lot of... Especially, for tech companies.
Chad Sowash: Well, we saw the other day that for individuals with disabilities, they're at the best hiring rate they've been. It's like seven...
Keith Sonderling: Because of that work from home accommodation.
Chad Sowash: Yeah. And then we've got employers saying, get the hell back in the office. Like, I wasn't in the office in the first place.
Keith Sonderling: Yeah. And this goes to the point before where I said that even if you're getting outside executives, right, that have those very long contracts generally drafted by lawyers, that HR professionals generally don't see for the most of your employees, especially the ones that you recruited during COVID to work from here in Louisiana, when the company's in Silicon Valley. Those are just offer letters. And again, the employer can still change the job requirements. So you've seen people who've been out in Costa Rica living a nice life and saying, if you're not in the office in Oregon on Monday, you're fired. And they could sort of do that in that sense as well, because they can change that. So you're starting to see that as well. And employees want to know what their legal rights are there. Not many. Right?
Keith Sonderling: But this is where if they say, well, I can't because of disability. This is... I wouldn't have applied to this job if I didn't have this accommodation. It's not really an accommodation. I wouldn't have applied to this job. And you have to start. They have to start that process fresh and saying, Well, even though I've been working from remote from home, that hasn't been an accommodation, it was just part of the job. I'm unable to return to the office because of this and going through that process. And again, you all see the news too. The fear here is that it's just happening so quickly across the boards. And when it's the CEO's on TV saying everyone's back in the office and they want it quickly, all this, these violations start occurring.
Chad Sowash: So what about... Real quick. What about in the same vein, you have a lot of these employees that are not coming back because it feels like almost a forced layoff at some point where people are just going to quit.
Joel Cheesman: You think.
Chad Sowash: That's what companies are looking for, right? They're looking for, instead of paying severance, they just want them to quit. But there are employees that are out there saying, No, you hired me from here, I'm working from here. Fire me.
Keith Sonderling: And they'll get fired.
Chad Sowash: It just seems...
Keith Sonderling: Unless they can show it has a disparate impact on a certain group or what we've seen or targeting a certain group, we just want to get rid of this team, and this team is mainly of this race, this national origin. You'd have to get into these more complicated, is there intentionality there or is there just [0:25:27.8] ____.
Chad Sowash: Why you need a plan.
Keith Sonderling: Right. I mean, this is really going through these. So you don't have that. And we'll talk about with some of that when we get into the technology stuff. For older workers and disabled workers, there's going to be significant impact there as well. But, yeah, to your point about having a plan and going back and as complicated as all these new challenges are, whether it was with COVID, whether it's with these working from home or as we'll discuss technology, it's really going back to the basics and going back to the boring part of what you've done. And these same processes just apply to these newer issues, but sometimes we lose sight of that.
Joel Cheesman: So you touched on technology and we'll get to that in a second. The political winds are raging and I'm just curious, your take on a Kamala presidency versus a Trump presidency, what can we kind of expect to see at the EEOC?
Chad Sowash: Talk about trends. Jesus.
Keith Sonderling: Yeah, so I think that HR is going to continue to be in the spotlight and it's just really fascinating to see how these issues are now front and center in Washington, DC. It wasn't always like this. And you'll hear from Craig after. For most people going into these political positions like we did, working at the Department of Labor, working at the EEOC, it's not necessarily the most elite thing like going to the Department of Justice or Treasury or any of these other agencies historically, but there's just been such a switch in that where labor and employment issues are really top of mind in DC, and it started too with obviously President Biden being the most pro-union candidate and President.
Keith Sonderling: And then even if you look at the Senate, the Senate Health, Education, labor and Pension Committee that oversees the EEOC, DOL, NLRB, Bernie Sanders is the Chair of that committee and that's a job he wanted his entire career in the Senate because it deals with health, education and labor. So there's just a lot of scrutiny now from both sides on employment practices, post pandemic. So I think it's going to continue with that.
Keith Sonderling: I think that just the shifts of what the focuses are going to be are going to be different whether it's Harris or Trump and even different than Biden, where Biden, the Biden administration was just so heavy on traditional labor and unions and strikes and being involved in that process and unionization and you've all seen the explosion of unionization across industries that were the last you'd ever think to be unionized because they're the ones with the ping pong tables and the cafes and all this stuff were outside of the traditional where you would see labor. So I don't think if Harris wins, it's not necessarily that will go away, but I think there'll be a big shift for her from that kind of old school, like I like to say, old school Detroit Unions and strikes and unionizations to much more back in this world of the things that she was interested in like pay equity, racial discrimination.
Keith Sonderling: More of the core practices here, I think will be in a much bigger spotlight if she wins with the paid family leave initiatives, pay equity initiatives and really going back and rooting out racial discrimination kind of focus in some of the gender issues there, where if former President Trump wins, you have a record to see what he did when he was in office. And it was a lot more technical business regulations that were occurring then and that will occur again, like dealing with independent contracting issues, dealing with joint employers issues, franchisee and franchisor liability, a lot of those more structural business foundation regulations to make it easier for businesses...
Chad Sowash: Reinsert NDAs.
Keith Sonderling: Well, maybe. Things like that. But no, I don't want to say. It's much more technical in that sense of what the initial priorities I believe over there will be, like the overtime threshold and things like that, just changing some of those. But across the board too, I still think there'll be a lot of interest too. And I think, even I'm sure it's been discussed in this conference, like with the diversity, equity, inclusion initiatives. I think both, whoever wins, it's going to continue where, if Harris wins, it's going to be still continue push on DE&I on one side. And if Trump wins, you'll see some of the advocacy groups having a DE&I push on the other side relating to some reverse discrimination claims.
Joel Cheesman: How about headcount and funding? Do you see one candidate putting more resources into it versus another? Because under Biden, we've had more money and more resources put in. If Trump gets in, do you see that pulling back or do you see it...
Keith Sonderling: Well, a lot of that depends on Congress too, and how much, on the makeup of Congress. If it's a Democrat like Congress, these agencies will get a lot more money even though they've been kind of flat the last few years just from dynamics. If Republicans control everything, what you'll see is probably more of a flatline budget, but the additional resources will go to compliance assistance and training. Less on the investigator side and more on the outreach side. So generally you see the shifts in Democrat administration, hire a lot more investigators, hire a lot more lawyers. Republican administrations, you hire more people to do some of the compliance outreach and less in the investigatory side. And you see those numbers going down on the actual amount of frontline...
Chad Sowash: More education, less enforcement.
Keith Sonderling: Generally. Leading with education versus enforcement versus in Democrat administrations, leading with enforcement and then doing the education after. It's been pretty consistent, no matter who the President was, going back decades, on how Republicans look at enforcement, how Democrats look at enforcement.
Chad Sowash: Democrats are...
Joel Cheesman: Should we get into tech?
Chad Sowash: Yep. Go ahead and roll that beautiful bean footage.
S?: How do you guys know what the hell you're looking for in the first place?
S?: With a lot of companies saying, hey, wait a minute. We've never even thought about the dangers of what we just purchased.
S?: Conversational AI is a transformative technology.
S?: All you have to do is talk.
S?: Let's talk about trust real quick, because you blew up the whole system.
S?: But also for the candidates itself to not be discriminated against. And that's new, and that's a benefit.
S?: I think the future looks seamless.
S?: There's really a great opportunity here to give individuals a much better experience.
Chad Sowash: So, as you can see, we take Keith Sonderling wherever we go. Jesus. Yeah.
Joel Cheesman: He's the secret to our success.
Chad Sowash: Yeah. So needless to say, we talk a lot about AI. And it was amazing because I had a Chief of staff reached out to me, of a EEOC commissioner, to talk about AI. And this is three, three years ago. Three, four years ago. I'm like, you're full of s***. EEOC doesn't know how to spell AI. This is not a thing. So it's hard to spell. [laughter]
Keith Sonderling: I-A-A.
Chad Sowash: So we sit down with Keith and we start having discussions and we start having these very... I've worked with the EEOC and OFCCP for 10 years plus, and I've never had these higher technical conversations. We're talking about mainframes, we're talking about basic stuff. So it was really, it was great. Had great conversations. And we're able to start talking about things on the government side of the House that I've been trying to get many of these conferences to talk about for years now. AI, it's coming, and now that it's here, everybody, they're having problems.
Joel Cheesman: Freaking out.
Chad Sowash: They're having problems.
Joel Cheesman: Freaking out.
Chad Sowash: And as you saw from the presentations the other day, you've got CEOs, 70% of those are like, yes, we're going full forward with AI. How many companies in here today have already started to institute automation and AI into your hiring practices?
Keith Sonderling: I'm not in the government. You can raise your hand.
Chad Sowash: Yeah.
Keith Sonderling: It's fine. I can't do anything anymore.
Chad Sowash: So thank you, thank you for all of you who did not raise your hands. I bet you are. I bet you already are and you don't even know it. Two weeks ago, we were in Scottsdale and we were talking to tons of major brands. You saw GM, Eileen Kowalski from GM there, General Motors, not a small organization, right? They did some amazing efficiency work with technology, AI, automation, saved millions of dollars. We were having conversations with the global VP of Talent Acquisition. No compliance people were around. Right. But she had to go through that process, even though again, a lot of the tech that we're seeing today is starting to automatically push automation efficiencies and it's just baked into the system. So this is for us one of the most important areas from an education standpoint. And that's exactly what Keith was trying to do. So...
Joel Cheesman: It's full of risk. Isn't it, Keith?
Chad Sowash: Why in the first place, why did you make that call? Why did AI matter for you?
Joel Cheesman: Set the table for AI?
Keith Sonderling: Because, when we talk about these trends where I started, I wanted to get ahead of it when I got there and say, what are the next big issues impacting AI? And it's very hard. Actually the next big issue is impacting HR. That's where I learned about AI, because it's very hard with all these things going on to focus on something in the future when you literally can't deal with what you have on your plate that day. And I didn't know anything about this kind of software, I didn't know anything about this whole industry. And that's when I learned through reaching out to a lot of people in the industry really how prolific it is being used within the HR function, not to, and this was 2020, 2021, not to displace workers in that conversation now, but just to actually do core functions that HR professionals have been doing, all with the promise not just to do it more efficiently and effectively than all of you humans in the room, but without bias.
Keith Sonderling: And I was like, okay, now that's where we can get involved. Because a lot of the vendors out there at the time, if you remember early on, were just saying this is a bias-free solution to use AI instead of your human recruiters to get perfect diversity, equity, inclusion, to get...
Chad Sowash: Famous last words by the way.
Keith Sonderling: Hiring. And if you remember really early on, they were saying, and we're certified by the EEOC and OFCCP [0:36:01.7] ____, and they don't, EEOC and OFCCP [0:36:04.6] ____ doesn't certify anybody, as you all know. But using some of these old standard tests in the aggregate and kind of playing with that. So I would say this is worth getting involved. And you get involved and you realize it's just really every function that HR professionals do, there's AI software out there promising to do it better. And that's where I thought it was really important to get in because in looking at it and it's extremely complicated, so many people are just getting lost in how the technology works and trying to keep up with what is AI, how does it actually work in the HR function.
Keith Sonderling: And what I found was all the vendors in this space and all the people investing in this space, they all have one thing in common. And I know, you know all of them was that they've never worked in HR. They're very smart entrepreneurs from Silicon Valley that sees HR as a function that they've only dealt with from the outside and saying, oh, that's something we can automate, that's something we can make a product to do better. The difference about using AI and HR versus other areas in your business, where they're coming from, is that when you're dealing with AI and HR, you're dealing with fundamental civil rights and that's the ability to enter and thrive in the workforce, provide for your family without being discriminated against by a human or an algorithm.
Keith Sonderling: So that's really why it was so important to spend so much time here to go through each one of these softwares and tools and just to take a step back and where I've kind of just simplified all of this, is saying at the end of the day, all these AI tools that are being sold to you, that you've bought, been using, at the end of the day, they're, what is the employment decision you're using them to help you with, assist or make? Right? Because that is what we're going to look at and that's what the law requires to be fair. So what are the results of these decisions? And then we can sort of backtrack from there how you got there versus how it's compared to what your functions are now without using technology. But there's only a finite amount of employment decisions, right? Hiring, firing, wages, training, promotions, demotions, and that's really what these tools are getting involved in and that's what we regulate and that's what you all know.
Keith Sonderling: So throwing in so many layers of technology has caused so much chaos and confusion, saying, we don't understand this, we don't even understand our function anymore because all these products and tools are being designed to do it better, but what are they actually to do? So I've kind of flipped the narrative saying it's no longer a question, are you going to use this in HR? We need to go back and rephrase it and saying, what are we using it for? What are our existing practices? How is this going to potentially make it better from removing bias? Or is it going to actually increase potential discrimination? And at the end of the day, what is the results of those tools? Because that's what the EEOC looks at, that's what the OFCCP looks at, that's what judges and courts are going to look at. Show me the results. Less about all the numbers, how you got there, but let's look at the results because that's what you all know and that's what the process you already have in place.
Chad Sowash: Outcomes.
Joel Cheesman: So we had some pretty high profile cases early on. Amazon had their own sort of homemade AI that they actually canceled because they did see bias in their efforts. We saw a HireVue case in Illinois and a lot of laws we saw getting passed and legislation. To me, and we talk about this pretty frequently, it seems like things have kind of died down, but I know that you live this stuff every day. Are we still seeing laws passed at a state, local level? Have things cool down? Should we expect some sort of federal guidance on this issue?
Keith Sonderling: Yeah, and that's where I got involved early in just saying, well, so many people were hesitant about using this technology because, oh, all these new proposals and these new laws and we don't know how to comply with them or there's no federal laws yet. Maybe we can use it quickly. And that's just not true because at the end of the day what I've said is that there's an employment decision, right? And that's what's being regulated. Whether or not there's new laws from states, the EEOC is still regulating your use of AI or humans through the employment decision. Right?
Keith Sonderling: And that's really ultimately what the law is always going to look at, but that doesn't ignore that there's a lot of pushes for additional requirements on AI, whether it's transparency, whether it's auditing, which is getting done by the states, which is getting even more confusing because in certain states like for Illinois was the first state to pass an AI law within HR saying it's almost impossible to use facial recognition stemming from some of the cases you mentioned. And you have to do all these Disclosures, it's just so difficult to use it. And then Maryland filed, then everyone knows in New York City they had their Local Law 144, which then required, if you're going to use it in New York City to do a pre-deployment audit and to do a yearly bias audit. So if you look at some of these state and local laws, what are they asking to do even in New York?
Keith Sonderling: And I know there's a lot of controversy around it saying, okay, we'll do a bias audit. That's something the EEOC has encouraged and something a lot of you do anyway with all your other hiring practices as well. So as these states and local governments try to put new requirements in there or even what's going on in Europe with the EU AI Act designating the use of AI in HR as higher risk. Well, what does that require? It requires you, disclosure, doing a bias audit. So when states and foreign governments start poking around saying, okay, well how do you do a bias audit? Right. Well, tell us New York, how do you do a bias audit? Tell us Brussels, how do you do bias audit? Then saying, look to the EEOC's 1978 guidelines on uniform employment selection procedures.
Keith Sonderling: So like, okay, thanks for nothing, right? They're dumping it back on us. But that shows where your strength is there too, because this is not new about how you actually do these underlying tests to see whether it's an employment assessment you're giving out or these AI tools have bias. And that's something you can get ahead of. So I don't necessarily fear a lot of these state and local laws. I think it causes confusion because in New York, the bias audit only needs to be done for hiring and promotion for race, sex and ethnicity.
Keith Sonderling: So that could lull you into thinking that you're in compliance in New York because you've done that, but then for the federal government, if you're going to do an audit, the EEOC would then require the other protected categories, age, religion, and then also two, more than just hiring and promotion, termination, just the whole, all the employment actions too. So you can see where it kind of gets a little choppy there too. So I think at some point with all these states trying to get involved, it will even out where you're going to see a lot of the requirements are going to be, maybe disclosure to candidates, disclosure to your employees, requiring that audit. All things you could voluntarily do now, those are just how much do you want to get ahead of it in advance?
Chad Sowash: So the fun part is that this is really, I mean, so if you've been a job seeker since the Internet, the process has become horrible. Takes half an hour to go through, actually apply for a job, but what we're seeing is, we're seeing a lot of this AI push is also starting to restructure the whole thought process around talent acquisition and how we go after talent. How many of you hire without resumes? One. How many of you have different hiring processes, technically going through your technical system for somebody going into a management position versus a different departments. Do you have customized? Okay, so not a lot of you.
Chad Sowash: Get ready. That's the next step. If I'm using, if I'm hiring frontline workers, they're not going to get on a laptop. Why do you have me filling out a form? That's the dumbest thing I've ever seen. They're going to have a chatbot. And guess what? They love it. GM was talking about how they saved millions of dollars by changing the process. They don't need a resume. They just need to know what? Are you meeting the requirements?
Keith Sonderling: Will you show up to work?
Chad Sowash: Yeah. Wow. Do you meet the requirements? We've gone so far overboard that many talent acquisition professionals can't fill roles. They're losing great talent because we've layered in a bunch of attorney stuff.
Keith Sonderling: And I think...
Audience Members: [0:44:10.7] ____.
[laughter]
Keith Sonderling: I mean, it's true. But you talk about the benefits of this because there's so much focusing on the risk. So let's just talk about that example now of, forget a resume, forget an interview with a person. Your entire experience is going to be on an app. And there's a lot of programs now, not just on the chat, that will do the entire interview through an app on your phone. And you think about what is the potential benefits of that is that the app can't see the color of your skin, it can't see if you're disabled, it can't see if you're pregnant, it can't see if you're wearing religious garb.
Keith Sonderling: So, so many people historically have gone into an interview, whether it's on Zoom or in-person, and what's the first thing that happens when you walk in an interview? You literally see everything about that person the EEOC says you're not allowed to make a hiring decision in. And for disabled workers, and particularly that hiring manager may say in the back of their mind, how much is this person going to cost me? How much accommodation is it going to cost me? Pregnant. How much is leave? You're going to have to hire somebody else. And there's just been so many people who historically have not been able to get past that first step, even though they're qualified because of those biases. But the app can't see any of that.
Keith Sonderling: And forget the resume. If it's asking you to do a real life scenario of what it's like to work there, then for the first time you're being able to actually judge that candidate not based necessarily what their background was, what the color of their skin, or where they went to school, all these inherent biases there, and actually seeing if they were able to perform the job. So there's just so many people that stand to benefit from this that historically have not been able to get past that first step because of the AI not being able to see that. But then of course, like anything else, I can flip it and tell you how that could potentially discriminate. It's really important to look at that as well, because people want to say it's the best thing and people want to say it's the worst thing, and it's neither. It's how you design it and how you use it.
Keith Sonderling: So let's say some of these programs saying, here's a real life situation at our store. How would you respond to this? And a lot of times you have to dictate saying, here's how I would react. The customer is coming here, and here's how I've dealt with it before. And it uses natural language processing to go through your voice and rates you you on the words you say in the order you say them to the employer satisfaction. Again, a really good thing. But you go to the design of these tools which are out of your control, which is you're relying on a vendor to actually build these.
Keith Sonderling: And for instance, if the person has a very thick foreign accent and it can't pick up what they're saying versus us who speaks fluent American English, that person with a really thick foreign accent may be giving a much better response than us, but it picks us up more than that person, so that's going to be national origin discrimination. Or if the person has a stutter or slurs, that could be disability discrimination at scale for all those people. So as you're giving these people now an equal opportunity, if the vendor can't account for that disability, can't account for that foreign accent, or to the example you gave before with the all women being excluded from the applicant pool because it was for a position that has historically, 99% of the resumes are males.
Keith Sonderling: So if you're a female, you went to a women's college, you automatically got the lowest score. That wasn't a misogynistic intent on behalf of the algorithm because it wasn't designed properly to see, Well, there still must be some underlying skill to be able to do the job, male versus female, to be able to eliminate that. And that's a challenge for all of you because you're not designing these tools and you're buying them and you're relying on the vendor to be able to account for those protected characteristics. And if they can't, you all are 100% liable for that mass discrimination against those people with foreign accents or those women who were excluded. Not the vendor, all of you.
Chad Sowash: And the thing is that we used to... Unless you're in California, where they might pull the vendor into that. But the hardest part is that we used to buy technology, set it and forget it. Put it in place, walk away. That is not going... The auditing process, the ensuring that we get a chance to actually take a look at outcomes very quickly, because the scale that happens is going to be much larger. What happens with scale, if there's any bias in that process whatsoever? Before, you might not been able to see it because it was so minuscule, but then you start to scale it up, bias explodes, not to mention things change. So now with this new technology, we're going to have to be more fluid. We can't just set it, walk away and forget it, put our processes in place and think that we're done, because that's going to bite you in the ass.
Keith Sonderling: And you have to also... The way this whole industry is, and you guys have been in it much longer than I, that's, you raise a great point. They're selling it like other kinds of software that you buy across your organization. And within HR, where you're buying this to set it and forget it, to make it more efficient, and it just doesn't work when you're actually having it doing HR functions because as you all know, each individual job description, each individual applicant, they have different requirements, and you have to go through it that granular. And that's just a different way of how you design and purchase this software.
Joel Cheesman: Keith, we've talked about the employer side this morning. I want to get a little freaky for a second. And things are going to get weird. All right. I mean...
Keith Sonderling: They're already weird.
Joel Cheesman: We're hiring robots in the metaverse who are... They look like alligators and whatnot. We have AI that we can be a video personality that is not who we are that may interview for us. People may interview and look like a woman of color and show up a white guy on day one. And like, this is going to happen. Does the EEOC have a North Star for this? Do they try to prepare for it? Like, how do you view the freakiness that is about to happen in technology from the job seeker side?
Chad Sowash: And make it short so we can at least get one question.
Keith Sonderling: Yeah, what kind of question is that?
[laughter]
Joel Cheesman: You know me. You know, there's got to be one [0:50:11.0] ____.
Keith Sonderling: The bottom line is it's still going to be on you to have those policies and procedures in place to prevent fraud. Right? Because applicants can't commit fraud against you, just like they can't say they went to Harvard and they didn't. They can't show up on the metaverse.
Chad Sowash: Fraud's fraud.
Keith Sonderling: Allegedly a person that looks a certain way to get the job and then show up somebody else. So, that's where the policies come in place that if an applicant commits fraud using these tools. But that really goes on you setting the guardrails of what these tools can do.
Joel Cheesman: Yeah.
Chad Sowash: Okay. Any questions? One question. We don't have a lot of time. If not, we're just gonna riff, and that's scary.
Joel Cheesman: Come on. An EEOC commissioner.
Chad Sowash: Former. Yes, ma'am.
Joel Cheesman: See, I'm not the only one. I'm not the only one.
Chad Sowash: Come on. Jesus.
Audience Members: [0:50:52.4] ____ you say, hire them.
Keith Sonderling: In your process, you have to have those disclaimers in there that... First of all, I mean, I don't know how many tools allow you to do that or if we're... This is down the road. It's really how you set the tone of using that kind of software to ensure that you're representing yourself. You're not doing anything that would mislead the employer to believe what your qualifications are or your... Goes across the board.
Chad Sowash: And think of it. I mean, there are people that are... And this is very fringe case. Okay, he's very fringy. So there are people that show up and do interviews for people, and then somebody else shows up. That's very fringe. Right? We've had people taking SATs for people for how many years? I mean...
Keith Sonderling: It's called fraud.
Chad Sowash: It's the same s***.
[laughter]
Keith Sonderling: Yeah.
Joel Cheesman: It's the same s***.
Keith Sonderling: It's exactly right.
Joel Cheesman: But you know, there's a lawyer out there thinking about this. The interview is a...
Chad Sowash: He's following ambulances and yeah, I totally get it.
Keith Sonderling: Don't commit fraud. Let's just leave it there.
Chad Sowash: So at the end of the day. Anymore? No, no, no.
Audience Members: I'll ask another question. So can you give us some examples of situations where work from home was a considered a reasonable accommodation?
Keith Sonderling: Yeah, it's really dependent on the type of disability the employee... It's so granular, it's really tough where you really can't. There's no broad stroke approach to it. Like I said that example too where two employees are saying they have anxiety but the type of anxiety and the type of differences are completely the accommodation to be able to perform the job are different. And that's why all of you, it's going to take a lot of work to go in and work with the medical providers and work with your own medical providers.
Keith Sonderling: I'm sure through your FMLA processes you have third party medical facilities that do those evaluations. It's really your appetite and it's the same thing with religion and having just gone through this, do you want to be in the business of questioning your employees' faith even though the law allows you to challenge to see if they really believe what they believe? That's a lot of time and resources versus here too where employee wants to work from home and it's related to PTSD, it's related to depression.
Keith Sonderling: You could take it at face value and if that medical doctor or therapist, whoever they went to saying this is the accommodation, you can just approve it or you can say we don't believe you and we are going to send you to a third party which you're allowed to do. The problem is it's just the inconsistent application where you'll see the friends of the managers will be able to work from home and the people who actually may need to work from home don't get that accommodation because they don't trust them, they're not as good employees. And it always breaks down on racial differences, on gender differences.
Keith Sonderling: And that's where you can really get in trouble not having those consistent policies of saying look, we're going to challenge every request for accommodation, we're going to send to a third party medical provider and we'll let them work it out. Or you know, there's a lot of services that do this as well versus we're going to do it on an individualized basis. So it's that consistent application. And that's more of a business decision that you need to work with outside of HR saying, how do we want to handle this? Do we just want to grant it, or do we want to actually go through our process to being able to see whether or not to challenge that?
Chad Sowash: What is your risk tolerance?
Keith Sonderling: Yeah, exactly.
Joel Cheesman: Keith, thanks for joining us today. For everyone out there that may have a question for you that they don't want to put out in public, they want to know more about what the EEOC is doing, I know they have some AI guidelines that might be helpful to them. Where should they go?
Keith Sonderling: Reach out on LinkedIn or wherever or find me in the hall.
Joel Cheesman: Let's hear it for Keith Sonderling, everybody. We are the Chad and Cheese podcast. Check us out at chadcheese.com. You can find Keith on LinkedIn. Thanks for everything.
Chad Sowash: We out.
Joel Cheesman: We out.
Speaker 5: Wow, look at you. You made it through an entire episode of the Chad and 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 chuckleheads 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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