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Thousands of Covid-Related EEOC Charges Cite Disability Bias (1)

March 10, 2022, 5:42 PMUpdated: March 10, 2022, 9:03 PM

The Covid-19 pandemic has led thousands of workers to file discrimination claims with the EEOC, with the majority related to disability bias on top of a surge of vaccine-related charges in the wake of workplace mandates, according to data provided to Bloomberg Law Thursday.

Since April 2020 through December 2021, the U.S. Equal Employment Opportunity Commission has received roughly 6,225 Covid-related charges of discrimination under federal civil rights laws, the latest agency data show. In addition, the commission received more than 2,700 vaccine-related charges, most of which were in 2021 when vaccine requirements were introduced.

Charges filed to the agency are the first step for workers bringing discrimination lawsuits, including under the Americans with Disabilities Act, Title VII of the 1964 Civil Rights Act, and other anti-bias laws.

The Covid charges not related to the vaccine were relatively steady between 2020 and 2021, with nearly 3,150 in the first year of the pandemic, and 3,075 the following year.

About 66% of the Covid-related charges raised ADA violations, totaling around 4,125. Meanwhile, the ADA was cited in 300 of the 2,700 complaints tied to vaccines.

“Disability discrimination cases have been steadily rising, even before Covid,” said Jasmine Harris, a law professor at the University of Pennsylvania, who specializes in disability and anti-discrimination law. Harris said the jump comes as employers and workers are grappling with the “emergent questions about the virus.”

The EEOC didn’t immediately confirm which statutes were raised in the other vaccine charges, but companies have reported floods of religious exemption requests under Title VII. Employers enforcing vaccine mandates must reasonably accommodate a worker’s religion unless doing so would pose an undue hardship.

ADA lawsuits filed by workers during the pandemic have challenged denials of telework accommodations, and terminations or other adverse actions against those who contracted the virus. They’ve also tested when Covid-19 itself is a disability that triggers ADA protections.

The EEOC has brought at least three lawsuits related to disability bias and Covid, including against ISS Facility Services Inc. for allegedly denying a work-from-home accommodation, and two lawsuits in Texas against a pharmacy in Fabens and a coffeehouse in Ft. Worth that allegedly discriminated against employees with disabilities and rendered them vulnerable to serious illness if they contracted Covid-19.

“The COVID-19 pandemic has proved to be a civil rights crisis in addition to a public health crisis and economic crisis,” the EEOC said in a statement Thursday. “As we heard at our public hearing last year, it has disproportionately impacted people of color, women, older workers, individuals with disabilities, and other vulnerable workers.”

The agency continues to get questions stemming from the pandemic, including about re-entry to physical workplaces, vaccination policies, testing and masking requirements, and the future of work.

The EEOC previously issued guidance for employers and workers navigating Covid-19 issues.

That guidance made clear, for example, that not every person with the virus will qualify as disabled, but said the virus’s aftereffects should be considered under the ADA’s three definitions for a disability. Those cover actual physical or mental impairments that substantially limit a major life activity; an employer’s perception that a worker has a disability; or the worker’s record of impairment.

Novel Issues

Harris said courts will continue to dissect novel questions about Covid-19 and disability discrimination. These include how to treat asymptomatic and symptomatic workers, which could parallel bias cases involving employees with HIV or AIDS. Other issues include what qualifies as a reasonable accommodation for people with disabilities, she said.

What constitutes a “direct threat” to the workplace will be another area, which will touch on employers’ decisions about safety measures and vaccine requirements as they consider disability accommodation requests, she said. They’d need to consider what exemptions are possible, and also protect the vulnerable workers as offices return to “normal.”

Employers can also raise a “direct threat” defense to fire or refuse to hire a worker if their disability poses a threat to the health and safety of other individuals.

Long-haul Covid will also pose a challenge. Employment attorneys previously said accommodations for long-haulers may be difficult to navigate.

Employers have found it difficult to navigate these issues in the last two years, said Aaron Goldstein, a labor and employment partner with Dorsey & Whitney LLP, adding that religious or medical exemptions from vaccine mandates have been a source of tension for employers.

The EEOC’s guidance on these topics has been general and limited, particularly on religious and medical accommodations, he said, and the agency should offer more for employers.

“Even sophisticated HR professionals have struggled to adapt long standing legal concepts to unprecedented facts,” Goldstein said.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com