By Matthew J. Gagnon and Sarah K. Bauman
Seyfarth Synopsis: On November 17, 2021, the EEOC updated its COVID-19 technical assistance resources to add guidance on pandemic-based employer retaliation and interference. The updated guidelines clarify the rights of employees who engage in EEO protected activity. Key for employers are the numerous examples of what the EEOC deems retaliation in this specific context. Notably, this update is also consistent with the Commission’s recent stated objective (previously discussed here) of broadening its outreach and improving its technology for purposes of promoting effective communication and understanding of the U.S. workforce. Employers would be well served to review the new guidance.
COVID-19 Technical Assistance Generally
The EEOC’s COVID-19 technical assistance has explained and synthesized on a rolling basis the applicability of the federal anti-discrimination laws to the COVID-19 pandemic. The technical assistance seeks to inform employees of their rights with respect to such laws while addressing employer concerns stemming from the pandemic. Presently consisting of 13 sections (available here), this assistance program addresses issues such as confidentiality of medical information (Section B), hiring and onboarding (Section C), return to work (Section G), and vaccinations (Section L). For example, the Commission clarifies that employers may not direct at-risk applicants, such as those who are 65 or older or pregnant, to postpone their start date or revoke an offer of acceptance. Employers may, however, choose to allow telework or discuss the option of a postponed start date. In sum, the technical assistance provides valuable guidance to employers on how to balance necessary COVID-19 precautions with employees’ rights to be free from workplace discrimination.
Recent Update On Retaliation
The EEO laws, such as Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans With Disabilities Act (“ADA”), prohibit employers from retaliating against employees for engaging in “protective activity” — i.e., asserting their rights under such laws. Protected activity generally takes many forms, the most typical being an employee’s complaint to a supervisor about workplace harassment, being a witness to such harassment and reporting it on the victim’s behalf, or filing a charge or lawsuit against the employer. Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity, such as termination, denial of a promotion or benefits, or involuntary transfers. To be actionable, the employer’s response must be a result of the protected activity.
Additionally, the ADA specifically prohibits not only retaliation, but also “interference” with an individual’s exercise of ADA rights. For example, employers may not coerce, intimidate, or threaten an employee who seeks to exercise his or her rights under the ADA.
In addition, (available here), the EEOC sets forth several scenarios, specific to the COVID-19 context, which constitute retaliation in violation of federal anti-discrimination laws. For example, a supervisor may not give a false negative job reference to punish a former employee for making an EEOC complaint or refuse to hire an applicant because of the applicant’s EEOC complaint against a prior employer. The EEO laws also prohibit retaliation against employees for reporting harassing workplace comments about their religious reasons for not being vaccinated. Further, employers may not, for example, transfer an employee to a less-desirable role for requesting continued telework as a disability accommodation after a workplace reopens.
The Commission also explains that requests for accommodation are protected activity even if the individual is not legally entitled to an accommodation. In other words, employers may not retaliate against an employee if that employee requests an accommodation but the employee’s medical condition, for instance, is not ultimately deemed a disability. Such protected activities could come in the form of requesting to modify one’s protective gear (like a mask) so that it can be worn with religious garb, or requesting to be exempt from an employer’s vaccination requirement for religious reasons.
Implications For Employers
The Commission has stated that retaliation is the most frequently alleged form of discrimination in EEOC charges and has been for many years. That said, employers should be aware of the specific circumstances that could give rise to such claims during these unprecedented times. Increased efforts should be geared not only towards minimizing the health-risks of COVID-19, but also towards protecting their employees from discrimination derived from pandemic-related issues. Doing so could significantly reduce an employer’s potential for liability under the EEO laws.