Retaliation related to COVID-19

On November 17, 2021, the EEOC again updated its question-and-answer (Q&A) technical assistance on COVID-19-related employment issues, this time to include a new section (M) on retaliation and interference. Citing 2016 guidance, the Commission noted that the anti-retaliation protections discussed in the new section apply to the exercise of rights under the federal equal employment opportunity (EEO) laws. These protections are summarized below.

“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,” EEOC Chair Charlotte A. Burrows said in a statement. “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.”

Retaliation for exercising EEO rights. The EEOC explained that job applicants and current and former employees are protected from retaliation by employers for asserting their rights under any of the federal EEO laws. These laws prohibit workplace discrimination based on race, color, sex (including pregnancy, sexual orientation, and gender identity), national origin, religion, age (40 or over), disability, or genetic information.

Speaking out about or exercising rights related to workplace discrimination—protected activity—can take many forms, for example, complaining to a supervisor about coworker harassment based on race or national origin. Witnesses to discrimination who seek to assist those who are affected by discrimination are also protected. However, engaging in protected activity, does not shield an employee from discipline, discharge, or other employer actions taken for reasons unrelated to the protected activity.

Protected activities that may apply in the COVID-19 context. The technical assistance provides several examples of protected activities that may be related to COVID-19:

• Filing a charge, complaint, or lawsuit, regardless of whether the underlying discrimination allegation is successful or timely: Employers may not retaliate against employees who file EEOC charges alleging that their supervisor unlawfully disclosed confidential medical information (such as a COVID-19 diagnosis), even if the EEOC later decides there is no merit to the underlying charges. Further, a supervisor may not give a false negative job reference to punish a former employee for making an EEO complaint or refuse to hire an applicant because of the applicant’s EEO complaint against a prior employer.
• Reporting alleged EEO violations to a supervisor or answering questions during an employer investigation of the alleged harassment: An Asian American employee who tells a manager or HR official that a coworker made abusive comments accusing Asian people of spreading COVID-19 is protected from retaliation for reporting the harassment. Also prohibited is retaliation against employees for reporting harassing workplace comments about their religious reasons for not being vaccinated or reporting sexually harassing comments made during a work video conference.
• Resisting harassment, intervening to protect coworkers from harassment, or refusing to follow orders that would result in discrimination: Workplace discrimination laws protect a supervisor who refuses to carry out management’s instruction not to hire certain applicants based on the sex-based presumption that they might use parental leave or have childcare needs, or to steer them to particular types of jobs.
• Requesting accommodation of a disability (potentially including a pregnancy-related medical condition) or a religious belief, practice, or observance regardless of whether the request is granted or denied. EEO laws prohibit an employer from retaliating against an employee for requesting continued telework as a disability accommodation after a workplace reopens, or requesting religious accommodation, such as modified protective gear that can be worn with religious garb. Requests for accommodation are protected activity even where the individual is not legally entitled to accommodation, such as where the employee’s medical condition is not ultimately deemed a disability under the ADA, or where accommodation would pose an undue hardship.

Covered individuals. Retaliation protections apply to current employees, whether they are full-time, part-time, probationary, seasonal, or temporary, the EEOC noted. Retaliation protections also apply to job applicants and to former employees—for example, when an employer provides a job reference. Moreover, these protections apply no matter the applicant’s or employee’s citizenship or work authorization status.

When does the protection apply? Participating in an EEO complaint process is protected from retaliation under all circumstances. Other acts by a current, prospective, or former employee to oppose discrimination are protected so long as the employee is acting on a reasonable good faith belief that something in the workplace may violate EEO laws, and expresses those beliefs in a reasonable manner. Note that an employee is still protected from retaliation for making a complaint about workplace discrimination even when not using legal terminology to describe the situation.

What constitutes unlawful retaliation? Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity, the EEOC said. Depending on the facts, this could include actions such as:

• Denial of promotion or job benefits;
• Non-hire;
• Suspension;
• Discharge;
• Work-related threats;
• Warnings;
• Negative or lowered evaluations; or
• Transfers to less desirable work or work locations.

Retaliation may also include an action that has no tangible effect on employment, or even an action that takes place only outside of work, where it might deter a reasonable person from exercising EEO rights. The fact that an individual is not actually deterred from opposing discrimination or participating in an EEO complaint-related process or activity does not preclude an employer’s action from being considered retaliatory, the commission noted.

Depending on the specific situation, retaliation likely would not include a petty slight, minor annoyance, or a trivial punishment.

Workplace discipline. 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 where an employee performs poorly, has low productivity, or engages in misconduct. In those situations, an employer may respond as it normally would, even when 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 when these action actions follow EEO activity, such as an accommodation request.

ADA interference. Turning to the ADA, the EEOC observed that the ADA prohibits not only retaliation for protected EEO activity, but also for “interference” with an individual’s exercise of ADA rights. Employers may not coerce, intimidate, threaten, or otherwise interfere with the exercise of ADA rights by job applicants or current or former employees. Here, the Commission noted that it is unlawful for an employer to use threats to discourage someone from asking for a reasonable accommodation, or to pressure an employee not to file a disability discrimination complaint. The ADA also prohibits employers from interfering with employees helping others to exercise their ADA rights.

Notably, an employer’s actions may still violate the ADA’s interference provision even where the employer does not actuallycarry out a threat, and even if the employee is not deterred from exercising ADA rights.

Retaliation protections under other laws. The EEOC also pointed to information about similar protections under other federal workplace laws, such as the Family and Medical Leave Act or the Occupational Safety and Health Act, and the Immigration and Nationality Act’s antidiscrimination provision, which prohibits some types of workplace discrimination based on citizenship status, immigration status, or national origin, and protects against retaliation for asserting those rights.

Continuing updates, interagency initiative. In a press release, the EEOC noted that the it has updated its technical assistance on employment and COVID-19 about 20 times throughout the pandemic. This particular update also supports the EEOC’s participation in an interagency initiative launched the same day in an effort to end retaliation against workers who exercise their protected labor and employment law rights. The other participants in the initiative are the Department of Labor and the National Labor Relations Board. The initiative will include collaboration among these civil law enforcement agencies to protect workers on issues of unlawful retaliatory conduct, educate the public and engage with employers, business organizations, labor organizations and civil rights groups in the coming year.

Source: Written by Pamela Wolf, J.D.

From WCI's HR Answers Now ©2021 CCH Incorporated and its affiliates. All rights reserved.