COVID-19 Retaliation Based on Protected Classification: EEOC Guidelines – Community News
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COVID-19 Retaliation Based on Protected Classification: EEOC Guidelines

The latest batch of Covid-19 news is disturbing. The Biden administration is fighting in court over its mandate to vaccinate or test. Europe, Asia and parts of the US are suffering a sharp rise in the “Delta” variant of Covid-19 diseases that are starting to look just as bad by the end of 2020 – most severe among the unvaccinated. And we continue to burn through the Greek alphabet with the advent of the potentially much more virulent Covid-19 “Omicron” variant.

In that environment, employers are plagued by the ongoing (and it seems the right) message:

You need to mandate vaccination, or at least create an environment where it is encouraged and expected to be the right thing to do.

So it’s notable that on November 17, 2021, the EEOC updated its Technical Assistance Questions and Answers to address protecting workers from retaliation related to Covid-19. This new guideline, while stated nominally in the Covid-19 context, only summarizes the existing standards for retaliation claims:

  • Protected activity: Protected employee activity can take many forms, such as filing a complaint or filing a lawsuit, even if it is late or unsuccessful; reporting violations or giving negative answers in an investigation; intervene to protect colleagues; and applying for disability or religious accommodations. (In fact, the full list of what is actually protected by law is much longer than the new directive.)

  • Protected people: Employees and applicants are protected regardless of part-time or other status. Even prospective and former employees are protected from unlawful retaliation.

  • Default for retaliation: Retaliation includes tangible actions such as “denial of promotion or benefits, non-hiring, suspension, dismissal, job-related threats, warnings, negative or degraded evaluations, or transfers to less desirable workplaces or workplaces.” But it also includes intangible acts that have no effect on the workplace, or even take place outside the workplace, as long as “it can deter a reasonable person from exercising EEO rights.”

  • Employers can still discipline: The new guideline is not intended to stop legitimate disciplinary action from employers. But that is little consolation without situation-specific consultation with an employment lawyer or HR professional.

Strangely, nothing in the guidelines mentions any Covid-19-specific scenarios or examples. As such, it appears that the new directive has been published as a sort of general counterweight. It does not (in any way) create a claim for retaliation for legal Covid-19 vaccine and testing policies, or for the normal results of such policies, such as positive Covid-19 tests. Instead, it gives employers the balancing message:

Your employee who complains about employer discrimination is a protected right, even in the Covid-19 context, as long as the complaint – be it mandates, testing, social distancing or the rest – is still there based on one or more protected classifications such as “race, color, sex (including pregnancy, sexual orientation, and gender identity), national origin, religion, age (40 years or older), disability, or genetic information.”

  • For example, an employer has a mandatory vaccine, testing, or vaccine reporting policy, but enforcement is much stricter for a department that is largely made up of racial minorities, compared to another department that isn’t. As with any otherwise permitted policy, discriminatory enforcement or administration creates liability risks.

  • Or another example: An employee claims a disability or religious exemption from a mandatory vaccine policy. Employer rejects the request without entering into an interactive housing process. The same friendly liability risks would apply here as if the housing request were about shift work or leave. Vaccine policy is closely addressing issues of disability and religious accommodation.

Workers can be well informed about their rights, and retaliation claims can be one of the most dangerous under equal protection laws. The most common evidence for such claims is timing: a complaint from an employee followed in time by disciplinary action or termination. In fact, the most common evidence of retaliation is circumstantial, and therefore much less susceptible to summary judgment. And – the protected complaint need not be well founded to be protected – it need only be based on a “reasonable good faith” that the employer’s opposing action is illegal or could become illegal if repeated.

To see the depth of the rabbit hole of federal retaliatory standards, the EEOC’s 2016 Enforcement Guidance on Retaliation reinforces and extends all of the above. There are also city and stands consider level retaliation rules. For example, in Florida, employers cannot take adverse action against an employee who refuses to be vaccinated under any of the five statutory exemptions. In Chicago, employers cannot retaliate against an employee for having been vaccinated.

The answer to accountability for retaliation is proactive risk management: following a training regimen for notice and opportunities to address performance issues; do not always treat misconduct the same as performance; documenting disciplinary action and performance reviews; and consult with HR professionals or employment counselors on sensitive disciplinary and timing issues – just to name a few of the many approaches.