EEOC General Counsel says personal experience led her to career fighting discrimination

U.S. Equal Employment Opportunity Commission General Counsel Karla Gilbride, who is blind, has experienced firsthand the kind of discrimination her federal agency is charged with preventing.

“As someone who’s had a disability all my life, I think I had a very personal sense of what some of those barriers” can be, with herself and disabled friends sometimes told “I don’t see how you could do this job, and so forget it,” Gilbride said.

“Some of that very blatant closing of doors still unfortunately happens. I wanted to do what I could to remove those barriers and level that playing field.”

Gilbride, a veteran disability rights advocate whose work has taken her from hearings before state agencies to winning arguments before the Supreme Court, was the keynote speaker as hundreds of retail industry attorneys, risk and compliance officers and human resources executives took part in NRF’s annual Retail Law Summit this month.

The three-day online conference featured attorneys from some of the nation’s most prominent law firms offering in-depth expertise in their specialties. Also speaking were retail chief legal officers including Sabrina Mizrachi from The Estée Lauder Companies, who addressed mitigating cybersecurity risks and increasing executive protection through insurance; Juliette Pryor of Lowe’s Companies, who helped unveil new research from NRF’s 2024 retail law department benchmarking survey; and Lisa Keith from Steve Madden Ltd., who joined attorneys from Benesch in outlining the top 10 legal risks for retail.

Inclusion means ‘opening doors’

While the EEOC is known for bringing enforcement actions, Gilbride said its priority is to prevent discrimination before it happens, and to urge compliance with the nation’s anti-discrimination laws.

“Compliance can be a cold word,” she said. “It’s like you’ve checked a box, you’ve complied. But really, it’s about opening up the community to everyone and benefiting from everyone’s talents, and everyone’s humanity in the workplace. To me, that’s what inclusion is about. It’s about opening doors.”

Gilbride said the five-year strategic enforcement plan released by the EEOC last year focuses on eliminating barriers to hiring, protecting vulnerable workers from employment discrimination, advancing equal pay, preserving access to the legal system, preventing systemic harassment and addressing emerging issues.

One emerging issue with widespread implications is the growing use of artificial intelligence in hiring and its potential to unintentionally introduce discrimination — whether it’s sorting resumes based on keywords or evaluating job candidates’ facial expressions and voice patterns in video interviews.

Gilbride said employers have an obligation to work with AI vendors to ensure that the technology is not “one size fits all,” is properly tailored to specific needs and isn’t allowed to make decisions without supervision.

“No one is telling the AI to downgrade people of a particular race, but are there other factors that might correlate with race that it is rating negatively?” she said, citing just one example. “If you are not sure how the AI is doing what it’s doing without human controls or a human overseeing the process who can check for bias or adverse impact, that might raise some cautionary flags.”

AI’s benefits and risks

Adam Forman, who co-chairs the AI working group at Epstein Becker Green and conducted a separate session on implementing AI tools in the workplace, agreed that employers must exercise caution in using artificial intelligence.

“If you’re using this tool for a workplace-related reason, it’s critical to make sure you’ve taken the steps you’re required to take to safeguard your employees’ private data,” he said, citing another example.

Despite potential risks from misuse, Forman said AI offers a number of advantages, such as real-time captioning that can assist the hearing impaired, or real-time translation for workers whose native language is not English.

“We spend a lot of time kind of identifying the parade of horribles, and there are a lot of pitfalls and things to worry about, but there’s also a tremendous upside to using workplace AI tools for diversity, equity and inclusion initiatives,” he said.

AI was also addressed in a session on enforcement trends at the Federal Trade Commission conducted by Margaret Krawiec, Todd Kelly and Paul Kerlin from Skadden.

“The FTC is for sure one of the agencies that is positioning itself as a key regulator of artificial intelligence,” Kerlin said, noting a “sweeping” executive order on artificial intelligence issued by the Biden administration last year and statements by FTC Chairwoman Lina Khan.

“Chair Khan’s position has been that AI misuse can and will violate consumer privacy,” he said. “She’s already said that the FTC plans to move aggressively against companies that engage in unfair or deceptive acts involving AI.”

Some of those cases already involve retailers: The agency reached a settlement in December with a pharmacy chain over its use of AI and facial recognition to identify customers likely to engage in shoplifting after the commission found there were thousands of false positives, particularly for customers of color. The case showed the risk of bias in AI and “provides a blueprint for what the FTC is looking at,” Kerlin said.

Rethinking FTC enforcement authority

Beyond AI, the Supreme Court ruled in 2021’s AMG Capital Management case that the long-relied-on Section 13B of the FTC Act does not give the FTC authority to seek monetary relief for deceptive practices, upending 40 years of enforcement practice.

“The AMG Capital decision really caused the FTC to rethink its enforcement authority,” Krawiec said.

As a result, the commission has shifted to bringing enforcement actions under trade regulation rules such as the telemarketing sales rule or the Children’s Online Privacy Protection Act, which carry fines of over $51,000 per violation, she said.

The FTC has been “very active in rulemaking in an attempt to expand current rules or create new ones” and has begun sending “blanket warning letters” to companies deemed in violation of regulations, including 1,100 in October 2021 alone, she said.

Additional cases of interest

In another session, Mithun Mansinghani and Drew Waldbeser from Lehotsky Keller Cohn addressed recent Supreme Court cases on administrative law and regulatory litigation that have implications for issues at the FTC, National Labor Relations Board, Securities and Exchange Commission and elsewhere that could impact retailers.

Of particular interest to retailers is a lawsuit brought by North Dakota convenience store and truck stop Corner Post saying the 21-cent cap on debit card swipe fees set by the Federal Reserve in 2011 was higher than intended by Congress. The suit wasn’t filed until 2021 and the statute of limitations for regulations under the Administrative Procedures Act is normally six years. But attorneys for Corner Post argued before the Supreme Court last month that the clock didn’t start to run for Corner Post until 2018, the year the business was established and first harmed by the cap when it started accepting debit cards.

“We think that the odds of the Supreme Court ruling for Corner Post are significant in part because they took up the case and the Supreme Court doesn’t often take up cases just to affirm what a lower court has done,” Mansinghani said. “If that’s what the Supreme Court rules, then many longstanding federal regulations may be susceptible to challenge by newly started businesses.”

The court will not want to open a floodgate of challenges, but a ruling in favor of Corner Post could have enough ambiguity that it will be subject to further litigation, Mansinghani said. What if a company was in business when a regulation was adopted but wasn’t harmed until later, he asked — maybe because it was too small to be covered but then grew. Mansinghani recommended that retailers always file any expected challenge to a regulation within the normal statute of limitations if possible.