New EEOC Guidance Focuses on Curbing COVID-19-Related Retaliation

The U.S. Equal Employment Opportunity Commission (EEOC) recently released more information for employers about preventing COVID-19-related workplace retaliation while also providing a healthy and safe work environment.

The updated guidelines clarify the rights of employees and job applicants who believe they were retaliated against for engaging in protected activities under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and other equal employment opportunity (EEO) laws.

"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," said EEOC Chair Charlotte Burrows. "The COVID-19 pandemic has created new situations and additional challenges, but it is no excuse to retaliate against people for opposing employment discrimination."

The agency noted that protected activity can take many forms, including:

• Filing a discrimination charge.
• Complaining to a supervisor about co-worker harassment.
• Requesting an accommodation related to a disability or a sincerely held religious belief (regardless of whether the request is ultimately granted).
• Witnessing discrimination and seeking to assist affected workers.

"The EEOC's updated COVID-19 technical assistance comes on the heels of an interagency initiative under the Biden administration to step up enforcement activity in the area of workplace retaliation in general," noted Tony Dick, an attorney with Fisher Phillips in Cleveland.  

"Many employers are still not aware of the numerous scenarios in which EEO laws may be triggered in connection with COVID-19," he said. "Therefore, becoming familiar with the updated technical assistance, particularly in light of the EEOC's increased emphasis on eradicating unlawful retaliation, should be a priority of all employers."

Protected Activity

Under federal and state laws, job applicants and employees have the right to work free from discrimination based on age, disability, national origin, race, religion, sex and other protected characteristics. In addition, employers may not punish workers for asserting their right to be free from employment discrimination. 

"Speaking out about or exercising rights related to workplace discrimination is called 'protected activity,' " the EEOC explained. The agency's Nov. 17 guidance provided examples of prohibited COVID-19-related retaliation.

"For example, an Asian-American employee who tells a manager or human resources official that a co-worker made abusive comments accusing Asian people of spreading COVID-19 is protected from retaliation for reporting the harassment," the agency said. "Workplace discrimination laws also prohibit retaliation against employees for reporting harassing workplace comments about their religious reasons for not being vaccinated."

Among other reasons, employers may not retaliate against workers for:

• Requesting extended telework as a disability-related accommodation.
• Requesting religious accommodations, such as the use of modified protective gear that can be worn with religious apparel.  
• Complaining that a supervisor unlawfully disclosed confidential medical information (such as a COVID-19 diagnosis).
• Participating in an EEO complaint process.

"Requests for accommodation are protected activity even if 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," the EEOC said.

Retaliatory Actions

An employer can discipline employees for legitimate reasons—such as attendance or performance issues or misconduct—if the employer would have taken the same action regardless of the protected activity.

"Similarly, an employer may take nonretaliatory, nondiscriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity [such as] an accommodation request," the EEOC said.

What is retaliation? The EEOC will consider whether an employer's action could deter a reasonable person from engaging in protected activity. The analysis is fact-specific, but retaliatory actions might include:

• Denial of a promotion or job benefits.
• Refusal to hire.
• Suspension or dismissal.
• Work-related threats or warnings.
• Negative or lowered evaluations.
• Transfers to less-desirable work or work locations. 

Examples of retaliation include when a supervisor provides a falsely negative job reference to punish a former employee for making a discrimination complaint or a hiring manager refuses to consider an applicant who filed a discrimination complaint against a prior employer.

Minor annoyances and trivial punishments likely wouldn't count as retaliatory, but actions that have no tangible effect on employment or occur outside of work could be considered retaliatory if they might deter a reasonable person from exercising EEO rights. 

To bring a retaliation claim, the EEOC noted, the employee's underlying discrimination claim doesn't have to be successful or timely.

Handling Vaccination Accommodation Requests

The EEOC has said that the federal anti-discrimination laws it enforces don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. Employers that encourage or require vaccinations, however, must consider reasonable accommodations when employees refuse to get vaccinated for medical reasons, including pregnancy-related reasons, or based on sincerely held religious beliefs, unless an accommodation would cause undue hardship for the business. 

If an employee refuses to get vaccinated against the coronavirus for a protected reason, the employer should engage in an "interactive process" (a back-and-forth dialogue with the employee) to determine if a reasonable accommodation can be made.

Leslie Wallis, an attorney with Ogletree Deakins in Los Angeles, said the steps that should be taken to explore reasonable accommodations typically include obtaining information from the employee's medical provider about the employee's need for an accommodation and the expected duration of the accommodation.

Reasonable accommodations for workers who can't get vaccinated may include working remotely; a combination of weekly COVID-19 testing, masking and physical distancing; moving the employee to a private workspace; or possibly transferring the employee to a position that does not require interaction with the public or other employees.

Robert Duston, an attorney with Saul Ewing Arnstein & Lehr in Washington, D.C., suggested that employers notify employees of the process and forms to be used and train supervisors to contact HR if workers raise concerns about the employer's policies.

Employers should note that the EEOC's guidance covers only the anti-discrimination laws it enforces, and employees may have added protections under other federal and state laws.