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Reprisal on the Rise: EEOC Updates Addresses COVID-Related Retaliation

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More than 67,000 claims of discrimination were filed with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2020.

 

Among these claims, retaliation was the most frequently alleged type of discrimination, accounting for 56% of all charges filed with the EEOC last year.

 

The organization has described this particular figure as “staggering.” But it only represents a 2% increase from 2019, and retaliation has been the most common form of reported discrimination with the EEOC for several years in a row.  


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The coronavirus pandemic seems to have only added to workplace tensions, which might help explain the slight uptick in retaliation-related claims in 2020.

 

In response, the EEOC recently updated its COVID-19 technical assistance to clarify the rights of employees and job applicants who feel they’ve been retaliated against by their employer in pandemic-related employment situations. The new guidance also aims to explain “how these rights are balanced against employers’ needs to enforce COVID-19 health and safety protocols,” according to a statement announcing the update.

 

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

 

“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.”

 

According to the EEOC, job applicants as well as current and former employees are protected from retaliation by employers for asserting their rights under any of the EEOC-enforced anti-discrimination laws. The update also addresses several specific protected employee activities related to COVID-19, such as asking for extended telework as a disability-related accommodation or requesting the use of modified protective gear that can be worn with religious apparel, for example.

 

With retaliation consistently ranking as the most commonly alleged violation of the civil rights laws the EEOC enforces, this update “is putting stakeholders on notice that, even in the midst of a pandemic, it will not turn a blind eye to charges [claiming] that employers allegedly engaged in unlawful retaliation,” said Jim Paretti, a management-side employment and labor relations attorney in the Washington, D.C. office of Littler.

 

As a practical matter for employers, the update should serve as a reminder that, as they navigate COVID-19 in the workplace, “they need to be mindful of their obligations with respect to reasonable accommodation under the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964,” he said.  

 

“Particularly with respect to issues arising with return-to-workplace policies and requests for telework, the EEOC has already brought charges alleging that an employer’s failure to allow continued remote work violated the ADA.”

 

Likewise, where vaccination policies are in place — whether mandated or voluntarily adopted — an employer needs to be cognizant of its obligations with respect to considering whether employees who cannot get vaccinated for reasons arising from a disability or sincerely-held religious belief of practice can otherwise be accommodated, added Paretti.

 

“The legal landscape here is changing daily, with courts addressing the legality of various federal requirements relating to vaccines, and states in turn adopting their own restrictions — often conflicting with federal rules — there is a potential minefield of liability that employers should be working closely with their counsel to navigate.”

 
About the Author

 

Mark-McGraw (1).jpg Mark McGraw is the managing editor of Workspan. 


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