ANALYSIS: Covid EEO Retaliation May Land Employers in Hot Water

With employers experiencing a marked increase in retaliation claims filed against them, the Equal Employment Opportunity Commission Wednesday released updated technical guidance for employers regarding workplace retaliation related to Covid-19 claims.

The new guidance is a reminder—and a warning—to organizations that the EEOC is taking a closer look at retaliation claims spurring from initial Covid-19 claims. If they do not want to end up in hot water with the EEOC, employers should actively take steps to prevent workplace retaliation related to Covid-19 claims and appropriately address any retaliation complaints that do materialize.

Same Laws, New Situations

In the updated guidance, the EEOC clarified that employers and their employees may not retaliate against employees who assert their EEO rights under antidiscrimination laws, such as the Title VII of the Civil Rights Act or the Americans with Disabilities Act, in the context of the Covid-19 pandemic.

To some, the guidance itself may be unsurprising, because retaliation against employees who assert rights under antidiscrimination laws is generally barred. Nevertheless, this guidance is the first instance in which the EEOC has clarified that this ban applies in situations where Covid-19 is involved.

The unique circumstances of the pandemic have presented situations where employees assert their EEO rights. As these rights are exercised in greater numbers, the chance of a retaliation claim increases, because even if an underlying discrimination claim is unmeritorious or if a disability accommodation cannot be granted, an employee can still file a retaliation claim if they believe they are penalized for asserting their EEO rights.

There are several pandemic-related scenarios where antidiscrimination laws could apply at the workplace. For example, employees may have asserted their rights under these laws in situations such as:

• requesting exemptions from an employer’s policies mandating vaccinations, testing, or face coverings based on disability, medical condition, or religion;
• requesting disability or medical accommodations that allow for an at-risk employee to work separately from others or from home;
• reporting harassment based on an employee’s decision to wear a mask for disability or medical purposes; and
• participating in an investigation related to a co-worker’s charge of discrimination relating to Covid-19.

Employers should ensure that any employee who requests an accommodation or asserts harassment or discrimination is not retaliated against by fellow co-workers, regardless of whether accommodations were granted or the harassment or discrimination claim is meritorious.

EEOC to Employers: Be Proactive

In response to this updated guidance, employers should take steps to prevent retaliation against employees who assert EEO rights, both in the context of Covid-19 and generally as well. Employers that don’t will face increased risk of employee retaliation claims—and all of the costs and disruptions that come along with them.

Employers should take the following steps to help to prevent instances of retaliation:

• Inform employees of and educate them on the organization’s antidiscrimination and antiretaliation policy, or institute one if one is not in place.
• Train management and supervisors on how to avoid retaliation.
• Discipline employees and supervisors if they retaliate against co-workers for asserting their EEO rights.
• Investigate all claims of retaliation promptly and thoroughly to ensure that no employee’s claim goes unnoticed.

It is not always possible to prevent retaliation, but employers that take these common-sense steps have a better chance to avoid it and any claims that may arise from it.

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