According to EEOC statistics, the most common basis for charges of discrimination filed with the agency is retaliation. Issues related to COVID-19, such as the ongoing need for sick leave, vaccine hesitancy, religious exemption requests from vaccine mandates, and long-COVID have added new retaliation concerns for employers. The EEOC’s most recent guidance provides some helpful items employers should be mindful of to prevent claims that they have violated federal anti-discrimination law.
Federal anti-discrimination statutes, such as Title VII and the ADA, contain provisions that make retaliation against someone for engaging in “protected activity” unlawful. Relative to the COVID-19 pandemic, employers need to be wary of concerns that implicate the anti-retaliation provisions of these statutes. For example, a COVID-19 related retaliation concern would be an employee who complains to HR or the EEOC about disclosure of their COVID-19 diagnosis (which could be considered confidential medical information under the ADA). Another example would be an employee who reports disparaging or harassing comments about their religious objections to being vaccinated (Title VII) to management. In either case, so long as the employee’s complaint is in good faith, the employee has engaged in “protected activity” by lodging their complaint and any action taken in reprisal for their complaint is unlawful.
“Reprisal” is defined broadly and includes any adverse action which would deter a reasonable person from exercising their rights under the various federal anti-discrimination statutes. Examples of reprisal can include lowered performance evaluations, denying promotions, elimination of job duties, suspension, and termination. The EEOC guidance notes that acts that do not have a tangible effect on the employment of the individual may be unlawful if they are taken to discourage the employee from participating in the EEO process. The employee’s continued participation in the EEO process is not dispositive of whether the employer unlawfully retaliated against the employee. If the action was taken to punish the employee for their complaint or discourage them from continuing in the EEO process, there may be a basis for a retaliation claim.
Fortunately, the EEOC’s most recent guidance reaffirms an employee does not become immune from discipline simply because they have engaged in protected activity. An employer may still discipline its employees for failure to follow its policies and procedures, poor performance, or misconduct, the same as it may for any other employee. However, employers should exercise caution when implementing disciplinary action against an employee who has engaged in protected activity. Employers must ensure that the disciplinary action is not disproportionate to that which has been given to employees who have not engaged in protected activity and is consistent with its established policies. Otherwise, the disciplinary action may be found to be an unlawful reprisal, even if the underlying conduct otherwise justified discipline.
We here at Luchansky Law are constantly monitoring EEOC guidance and federal anti-discrimination laws. If you and your business would like assistance with navigating these laws, whether generally, or with respect to COVID-19, give us a call at (410) 522-1020 to set up an appointment with one of our attorneys.