Morgan Lewis’s Speights on Virus, Diversity, and the Workplace

Nov. 19, 2020, 11:03 AM

Morgan, Lewis & Bockius partner Grace Speights has been focused on creating diverse, equitable workplaces at the same time she’s been helping clients wade through a tense election season and a global pandemic.

Speights leads the firm’s global labor and employment practice. Her work includes high-profile internal investigations for companies and advising clients on workplace culture. She also balances defending clients against employment discrimination claims and leading the firm’s task force on racial equity and justice. Her clients are heavy hitters—in financial services, media and enterprise, sports and nonprofits.

Speights spoke with Bloomberg Law about Covid-19, her predictions for the Biden administration—and what it all means for the workplace.

The following conversation has been edited for clarity.

What are some of the biggest upcoming workplace challenges you see from Covid-19?

As businesses open up, for example, and people come back into their employers’ location, and we still don’t have a vaccine, obviously safety of the employees who had to come back to work is a big concern for companies. We make sure they have in place the guidelines issued by the CDC and local jurisdictions. That’s a big challenge and will remain a big challenge until we get a vaccine.

There’s also the whole issue with the Americans with Disabilities Act. If you require people to come, let’s say an employee says, “No, I’m afraid I’m going to get Covid,” you have to deal with that, too. Some may say, “This mentally is impacting me,” and then we’re talking about mental health and disabilities. So, the whole issue of employees returning to work pre-vaccine, that’s a big issue that employers have to deal with from a compliance and safety standpoint.

We have seen Covid-19 related lawsuits, but not the wave of class actions that businesses feared would come.

There is still time. The statute of limitations won’t run out. I do think there are complicating factors because of the workers’ comp laws in terms of actually seeing the big wave of cases against employers.

But in terms of Americans with Disabilities and reasonable accommodations and those who are fearful because of the potential to catch Covid, do you have to make accommodations and continue to let them work remotely forever? There are all kinds of issues that will come up.

I see lawsuits primarily surrounding the ADA issue. You could also see it in terms of leave issues. We are going to see all kinds of issues, and smart plaintiffs’ lawyers will test the system.

What else are you predicting for the coming year and for the new administration?

The other thing I think you will see in the Biden administration, no question about it, is enforcement by government agencies. There will definitely be an uptick. I think that EEOC and DOL and those types of agencies will see more enforcement action, because under the Trump administration they weren’t staffed at the levels they needed to be staffed.

Enforcement has been down. In a Biden administration, all the agencies would be fully staffed and we will see more activity against companies for compliance issues.

What is keeping you the busiest, or is the main thing on your plate right now?

I get a lot of the #MeToo work, and that really did push a lot of work internally and externally. Jurisdictions passed statutes against arbitration and harassment claims and use of nondisclosure agreements for sexual harassment.

Yes, there was a lot of change, and I can foresee these will likely be applicable to the race issue. You have many employees who say, “OK, if you can’t arbitrate sex harassment or have a nondisclosure, why can’t you do the same for race harassment?”

We have heard that a lot. And it’s a good question.

There is still a lot of work to be done in this area, but the #MeToo movement will serve as a footprint for the racial injustice arena.

What Trump administration policies have had the greatest impact on businesses?

The most impactful has been in the immigration area. We help a lot of corporations with getting H-1B visas to bring specialized help into the country. Tight immigration restrictions were done with presidential proclamations, as opposed to anything that came out of Congress.

Changes to the overtime rules was a big issue. There, the Labor Department increased the level of income for those who could make overtime, and also modified the definition of employer for the purposes of overtime.

The president’s executive order on diversity and inclusion training will have impact. That was a real setback in listening to and hearing from our clients, who were trying to make a great deal of progress in the diversity and inclusion arena. And a lot of that starts with training—it starts with training your employees on things like implicit bias, privilege, and those types of issues.

Some legal observers fear chilling effects from the executive order. Do you agree that some corporations will be hesitant moving forward to do these types of diversity trainings?

I don’t agree with that. Most of my clients have a strong interest in diversity and inclusion. Now, obviously they are worried about what they can do in this arena without violating the law. For example, you can’t have initiatives that result in quotas and things of that nature.

But beyond that, there are things companies can do and they want to do, especially following the George Floyd murder, and with employees raising the issue of racial injustice in their own corporations—not on the streets but within their own corporations. It’s not limited to Black employees, but also allies of Black employees raising these issues internally. I have no doubt that the executive order will be rescinded in a Biden administration, and I think that once rescinded, corporations will move forward.

In fact, I know many moving forward despite the executive order because they don’t believe their training is disruptive or preaching reverse racism, and isn’t attributing systemic racism to non-Blacks in general. Most good trainings don’t do that.

We aren’t promoting hatred, reverse discrimination, or anything like that. We’re saying there are ways to level the playing field.

Will companies respond to their employees demanding equality and more racial justice?

I can tell you that we have many clients who, post-George Floyd, were faced with uprising—that’s my word not their word. Black employees and allies were internally demanding racial equality and demanding that companies take a look at the system and pay and training opportunities for advancement.

We had companies who had employee protests and work stoppages, even though they weren’t unionized employees. They went outside and protested, refused to answer emails and phones. It can be disruptive internally.

Most of the clients are very interested in trying to listen to their employees and make their workplaces better.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Lisa Helem at lhelem@bloombergindustry.com

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