Covid–19 has certainly presented all employers with new challenges, including learning to interpret laws through the new lens of COVID–19 safety compliance. Most employers know that they cannot retaliate against employees and/or applicants for participating in protected activity. Employers should be alert to what the EEOC (the Equal Employment Opportunity Commission) views as “protected activity” related to Covid–19, including these examples recently cited in EEOC guidance:
- A complaint that a supervisor unlawfully disclosed a Covid–19 diagnosis
(confidential medical information).
- A complaint by an Asian–American employee of harassment in the form of
abusive comments accusing the employee of starting or spreading Covid–
- A request by an employee for continued telework after the office has
- A request by an employee for modified protective gear that can be worn
with religious attire.
- A complaint regarding harassment about an employee’s religious views
It is important to note that such requests or complaints themselves are protected activity even if the request is denied or the complaint is unsubstantiated. In other words, if an employee reasonably and in good faith complains of harassment based on being Asian– American, the act of complaining itself is protected. An Employer may determine that no unlawful harassment occurred, but even so, the employer may not retaliate against the employee for making the complaint. Retaliation is any action that would deter an employee from engaging in protected activity, including but not limited to, denial of a job or benefits, disciplinary actions, a negative change in hours or location, and/or work–related threats and warnings.
Employers remain entitled to take legitimate, non–retaliatory action against employees. If an employer would have taken such an action regardless of the employee’s participation in protected activity, then that action is not retaliatory. Of course, sometimes the Employer’s intent in taking certain actions can be open to question. For example, assume that on Monday of this week, Employer AcmeCo decided to change Employee Jane’s schedule from first shift to third shift, but didn’t communicate that decision to Jane. On Tuesday, Employee Jane complains that she has been subjected to unwelcome comments about her Asian–American heritage. On Wednesday, AcmeCo tells Jane that her schedule is being changed. While Jane may view the change as retaliatory – the employer knows it was not. The real question may be whether AcmeCo can definitively show the EEOC, or a judge or jury that the decision to change Jane’s schedule was in fact made prior to her complaint. We always recommend that Employers contemporaneously document their decisions in writing for just this reason.
Covid–19 has definitely created a new spin on some old issues, so if you need guidance,
don’t hesitate to reach out to a member of Gardner Skelton’s employment team.