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EEOC Addresses Retaliation in Updated COVID-19 Technical Assistance 

Last week, the EEOC again updated its COVID-19 technical assistance; this time, to include more information about employer retaliation in pandemic-related employment situations. 
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The update explains and clarifies the protections available to employees, former employees, and job applicants who believe that they have suffered retaliation for engaging in protected activities under the ADA, Title VII, or other federal employment discrimination laws. And, the update discusses how those rights are balanced against an employer’s need to enforce COVID-19 health and safety protocols.

Said EEOC Chair Charlotte A. Burrows, “Retaliation is the most frequently alleged form of discrimination in the EEOC’s charges overall and has been at the top for too many years.” She continued:

The COVID-19 pandemic has created new situations and additional challenges, but it is no excuse to retaliate against people for opposing employment discrimination. This updated technical assistance provides additional clarity on how our laws balance workers’ rights to speak up without fear of retaliation against employers’ responsibilities to create a healthy and safe work environment.

Here are the highlights:

Federal employment discrimination law protects job applicants, employees, and former employees against reprisals for engaging in protected activity in connection with COVID-19.

Protected activity can take many forms, including:

  • Filing a charge, complaint, or lawsuit, even if the underlying claim is unsuccessful or untimely. For example, employers may not retaliate against employees who file a charge with the EEOC alleging that their supervisor unlawfully disclosed confidential medical information (such as a COVID-19 diagnosis), even if the EEOC later decides that the charge is meritless. Nor may an employer give a false negative job reference to punish a former employee for making an EEO complaint, or refuse to hire an applicant because she filed an EEO charge against a prior employer.
  • Reporting alleged EEO violations to a supervisor or answering questions during an internal harassment investigation. For example, an Asian American employee who reports that a coworker made abusive comments accusing Asian people of spreading COVID-19 is protected from retaliation. Likewise, workers are protected against retaliation for reporting harassing workplace comments about their religious objections to COVID-19 vaccinations.
  • Requesting accommodation of a disability or a religious belief, practice, or observance. For example, an employer may not retaliate against an employee for requesting continued telework as a disability accommodation after a workplace reopens. Similarly, requesting religious accommodation, such as modified protective gear that can be worn with religious garb, is protected activity. 

The retaliation protections extend broadly to current employees -- whether full-time, part-time, probationary, seasonal, or temporary -- job applicants, and former employees, such as when an employer provides a job reference. Also, those protections apply without regard to the individual’s citizenship or work authorization status.

Participating in an EEO complaint process always is protected from retaliation. Conduct opposing discrimination is protected if the applicant, employee, or former employee (1) is acting on a reasonable good faith belief that something in the workplace may violate EEO laws; and (2) expresses those beliefs in a reasonable manner. 

Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in such activity. That could include tangible adverse actions, such as refusing to hire or promote, disciplining, lowering job evaluations, assigning less desirable work, and transferring to less desirable work locations. Retaliation may also include conduct that has no tangible effect on employment as well as conduct that takes place outside of work, if it might deter a reasonable person from exercising his or her EEO rights. 
Depending on the circumstances, however, retaliation likely does not include petty slights, minor annoyances, or a trivial punishment.

This does not mean that an employer may never take action against someone who has engaged in EEO activity. Says the EEOC:

Engaging in protected EEO activity does not prevent discipline of an employee for legitimate reasons. Employers are permitted to act based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline. For example, if an employee performs poorly, has low productivity, or engages in misconduct, an employer may respond as it normally would, even if the employee has engaged in protected activity. Similarly, an employer may take non-retaliatory, non-discriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity (e.g., an accommodation request).

The ADA prohibits not only retaliation for engaging in protected EEO activity, but also “interference” with an individual’s exercise of his or her ADA rights. Under the ADA, employers may not coerce, intimidate, threaten, or otherwise interfere with an applicant, employee, or former employee’s exercise of their ADA rights. It is unlawful, for example, for an employer to use threats to discourage someone from requesting a reasonable accommodation or also pressure an employee not to file a disability discrimination complaint. Also, the ADA prohibits employers from interfering with employees helping others to exercise their ADA rights. 

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