Discrimination Risks Coming Out of COVID – What the EEOC May Tackle

On Wednesday, April 28, 2021, the Equal Employment Opportunity Commission (EEOC) will meet to hear testimony to consider the impact of the COVID-19 pandemic on workers, the difficulties faced by employers in navigating potential employment discrimination issues raised by COVID-19, and future challenges the pandemic may present for employees and employers.

The global pandemic has created a myriad of issues for employers, whipsawing from massive furloughs in the beginning to the current labor shortages for skilled labor roles and shifting attitudes about where, when, and how to work. 

Unemployment numbers are improving, which is both good and bad news.  According to the National Federation of Independent Business (NFIB), 42% of small business owners (seasonally adjusted) report having job openings that they were unable to fill with a qualified candidate.  91% of the owners that reported trying to hire reported have few to “no qualified applicants for the positions.”  Of those, 23% reported that they had no applicants whatsoever for the job opening.

From the perspective of employees, it’s a sellers’ market.  According to Eagle Hill Consulting, a national management consulting firm, “one in four employees plan to leave their organization once the COVID-19 pandemic is over. That number jumps to one in three for employees with children remote learning at home and for Millennials.”  Further, a recent Robert Half Survey released in early April showed that one in three workers would quit if their employer mandated a full-time return to the office.

Overlay all of this with the differing opinions on vaccination, mask-wearing, and the safety of gatherings and the landscape for employers is a virtual minefield.

As employers consider their return-to-work, hiring and retention strategies in the post-COVID environment, careful attention should be paid to the discussion that will occur at the EEOC’s hearing.  Three key matters of concern will likely include:

Safety of Personnel:  Employers have an obligation to provide safe work environments.  While safety is the purview of the United States Department of Labor’s Occupational Safety and Health Administration, the EEOC hearing will certainly wade into how post-covid safety may cause perceptions of discrimination around:

Vaccination:       The EEOC currently provides guidance on the ability of an employer to require a flu shot, which an employee may decline on the basis of medical or religious beliefs.  According to the Center for Disease Control, whether an employer can require vaccination as a condition of work is a matter of state, not federal, law.

For employers, a decision needs to be made as to what the company’s position will be and why.  Further, it’s recommended that the company carefully craft its communication about and around this policy carefully to set forth the reasoning and implications of the decision.  Should vaccination not be mandatory, the importance of other safety measures increase.

Face-coverings:  The requirement for the wearing of face coverings is similarly dictated by local law at either the state, county, or other municipal level.  In the absence of local mandates, this places the responsibility for implementing and enforcing a face covering requirement on the shoulders of the employer. 

The ethical, legal, and social implications of wearing masks have been a hotly contested issue.  While employers should understand that they have a legal responsibility to keep employees safe, there will be pockets of resistance.  (In fact, the resistance may be their own.) 

Regardless of the company stance, this may give rise to perceptions of favoritism, which could lead to claims of discrimination from either side of the equation.  The EEOC hearing may provide insights on how to navigate these tensions through company policy, communication, and consistent employment practices.

Social Distancing:  Physical capacity constraints may present challenges for social distancing.  When possible, many roles shifted to work from home (WFH) arrangements.  Other roles could not be done at home due to the nature of the work.  The degree to which accommodations can’t be made throughout the entire company, the company should strategize other precautions otherwise those groups of employees may perceive they are being treated in a discriminatory manner, particularly if they can claim a tangential basis such as the majority of the group being one gender or racial profile.

Before the pandemic, employers were tentative about WFH arrangements.  Most assumed that productivity would suffer.  Some people exceeded expectations and others were crushed under the weight of home-schooling and working from home. 

Selecting which roles, and employees within a role, are given flexibility to work from home, or not, should be based upon clear criteria for performance success in the role and be uniformly monitored and enforced.

COVID-19 Survivors:  Battling COVID-19 and surviving it could potentially give rise to potential employer discrimination issues when returning to work.  Lingering effects of the disease exist and may impair physical capacity and cognitive capabilities.  Performance may deteriorate which employers would want to address and remediate. 

I would expect that the EEOC may discuss whether COVID survival should be considered to be a potential disability protected under the law.  Employers should take care in addressing performance issues of a COVID survivor.  It may be prudent to approach the situation as if the individual were protected under the American Disabilities Act until further guidance is provided.

The She-cession:  Women in particular faced a heavier load and many left the workforce all together.  According to the National Women’s Law Center, “There were nearly 2.1 million fewer women in the labor force in December than there were in February, before the pandemic started.”  Further, “since February 2020, women have lost over 5.4 million net jobs, and account for 55.0% of overall net job loss since the start of the crisis.”  For those that remained in the workforce, many absorbed a disproportionate responsibility for childcare, home-schooling and elder care, which may have impacted the time, location, and manner in which they performed their work.

Employers should be aware that a 2017 EEOC Executive Order prohibits discrimination on the basis of parental status, regardless of gender.  As such, the EEOC may provide guidance on to what degree a break in employment due to COVID may be factored into a hiring decision.  Additionally, there may be discussion regarding to what degree the burdens of COVID life should be factored into performance, compensation, and promotion criteria.

What are your thoughts?  What steps are you taking in your organization to update your policies as we emerge from the pandemic to ensure fair and equal employment opportunities?  Share and let's have a conversation!

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