With Thanksgiving week coming up and my wife and daughter coming back from a college trip later today, I thought I would get a blog entry up this weekend for the Thanksgiving week.

It has been a while since we talked about EEOC guidance on Covid-19. In fact, since our last discussion, the EEOC has updated it twice. The first time focused on accommodating sincerely religious beliefs. Since that wasn’t exactly an ADA issue, I didn’t jump in at that time. However, their most recent updates definitely impacts the ADA universe. So, it is time to cover the latest two updates to the guidance. The blog entry will take the updated section verbatim that we have not covered and then at the end of that particular section I will give my thoughts and takeaways. §L and M of the guidance will all be covered in their entirety. §K just has certain section that were added since the last time we wrote about this.

COVID-19 Vaccinations:  EEO Overview

K.1.  Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated against COVID-19?    (Updated 10/13/21)

The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. (See Section L, Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates).

In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.  The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12).

As with any employment policy, employers that have a vaccination requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act [40+]). Employers should keep in mind that because some individuals or demographic groups may face barriers to receiving a COVID-19 vaccination, some employees may be more likely to be negatively impacted by a vaccination requirement.

It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.

Thoughts/takeaways:

  1. Keep in mind that undue hardship for accommodating sincerely religious beliefs and undue hardship for accommodating persons with disabilities do not at all mean the same thing.
  2. Open question as to whether an employer requiring all Applicants to be vaccinated for Covid-19 would not be a prohibited disability related inquiry. I have seen at least one management attorney make that argument. Remember, that the ADA has a scheme for dealing with disability related inquiries and medical exams, which we discussed here.

K.3.  How can employers encourage employees and their family members to be vaccinated against COVID-19 without violating the EEO laws, especially the ADA and GINA?   (Updated 10/13/21)

Employers may provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns. Employers also may work with local public health authorities, medical providers, or pharmacies to make vaccinations available for unvaccinated workers in the workplace.  Also, under certain circumstances employers may offer incentives to employees who receive COVID-19 vaccinations, as discussed in K.16 – K.21. The federal government is providing COVID-19 vaccines at no cost to everyone 12 years of age and older.

There are many resources available to employees seeking more information about how to get vaccinated against COVID-19:

  • The federal government’s online vaccines.gov site can identify vaccination sites anywhere in the country (or https://www.vacunas.gov for Spanish).  Individuals also can text their ZIP  code to “GETVAX” (438829)–or “VACUNA” (822862) for Spanish–to find three vaccination locations near them.
  • Employees with disabilities (or employees family members with disabilities) may need extra support to obtain a vaccination, such as transportation or in-home vaccinations.  The HHS/Administration for Community Living has launched the Disability Information and Assistance Line (DIAL) to assist individuals with disabilities in obtaining such help.   DIAL can be reached at: 888-677-1199 from 9 am to 8 pm (Eastern Standard Time) Mondays through Fridays or by emailing DIAL@n4a.org.
  • CDC’s website offers a link to a listing of local health departments, which can provide more information about local vaccination efforts.
  • In addition, CDC provides a complete communication “tool kit” for employers to use with their workforce to educate people about getting a COVID-19 vaccine.  Although originally written for essential workers and employers, it is useful for all workers and employers.  See Workplace Vaccination Program | CDC.
  • Some employees may not have reliable access to the internet to identify nearby vaccination locations or may speak no English or have limited English proficiency and find it difficult to make an appointment for a vaccination over the phone. CDC operates a toll-free telephone line that can provide assistance in many languages for individuals seeking more information about vaccinations: 800-232-4636; TTY 888-232-6348.
  • Some employees also may require assistance with transportation to vaccination sites. Employers may gather and disseminate information to their employees on low-cost and no-cost transportation resources serving vaccination sites available in their community and offer paid time-off for vaccination, particularly if transportation is not readily available outside regular work hours.
  • Employers should provide the contact information of a management representative for employees who need to request a reasonable accommodation for a disability or religious belief, practice, or observance, or to ensure nondiscrimination for an employee who is pregnant.

Thoughts/takeaways: K3 is self-explanatory and don’t have anything to add.

The ADA and COVID-19 Vaccinations

K.4.  Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?  (Updated 10/13/21)

Yes.  The ADA requires an employer to maintain the confidentiality of employee medical information. Although the EEO laws do not prevent employers from requiring employees to provide documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

Thoughts/takeaways: self-explanatory but very important to remember.

Mandatory Employer Vaccination Programs

K.9.  Does the ADA prevent an employer from inquiring about or requesting documentation or other confirmation that an employee obtained a COVID-19 vaccination?   (Updated 10/13/21)

No.  When an employer asks employees whether they obtained a COVID-19 vaccination, the employer is not asking the employee a question that is likely to disclose the existence of a disability; there are many reasons an employee may not show documentation or other confirmation of vaccination besides having a disability.  Therefore, requesting documentation or other confirmation of vaccination is not a disability-related inquiry under the ADA, and the ADA’s rules about making such inquiries do not apply.

However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential, as discussed in K.4.

Thoughts/takeaways: As mentioned previously, I have seen attorneys make the argument that requiring proof of vaccination prior to a conditional job offer might be a disability related inquiry prohibited by the ADA. However, this section is referring to Employees, which can make a big difference in the analysis. The EEOC is saying that with respect to employees the ADA does not prevent an employer from inquiring about or requesting documentation or other confirmation that an employee obtained a Covid-19 vaccination because there are variety of reasons why they may not show documentation or other confirmation of vaccination besides having a disability.

 

Title VII and COVID-19 Vaccinations

K.13.  Under Title VII, what should an employer do if an employee chooses not to receive a COVID-19 vaccination due to pregnancy?   (Updated 10/13/21)

CDC recommends COVID-19 vaccinations for everyone aged 12 years and older, including people who are pregnant, breastfeeding, trying to get pregnant now, or planning to become pregnant in the future.  Despite these recommendations, some pregnant employees may seek job adjustments or may request exemption from a COVID-19 vaccination requirement.

If an employee seeks an exemption from a vaccination requirement due to pregnancy, the employer must ensure that the employee is not being discriminated against compared to other employees similar in their ability or inability to work.  This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.  Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.

Thoughts/takeaways: this particular section is really nothing more than an explanation of the Young case, which we referenced here. While pregnancy is not a disability per se, the side effects of pregnancy might be. Also, dealing with pregnancy because of Young means going through the same reasonable accommodation analysis as you would for a person with a disability.

GINA And COVID-19 Vaccinations

Title II of GINA prohibits covered employers from using the genetic information of employees to make employment decisions.  It also restricts employers from requesting, requiring, purchasing, or disclosing genetic information of employees.  Under Title II of GINA, genetic information includes information about the manifestation of disease or disorder in a family member (which is referred to as “family medical history”) and information from genetic tests of the individual employee or a family member, among other things. 

K.15.  Is Title II of GINA implicated when an employer requires employees to provide documentation or other confirmation that they received a vaccination from a health care provider that is not affiliated with their employer (such as from the employee’s personal physician or other health care provider, a pharmacy, or a public health department)? (Updated 10/13/21)

No.  An employer requiring an employee to show documentation or other confirmation of vaccination from a health care provider unaffiliated with the employer, such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department, is not using, acquiring, or disclosing genetic information and, therefore, is not implicating Title II of GINA.  This is the case even if the medical screening questions that must be asked before vaccination include questions about genetic information, because documentation or other confirmation of vaccination would not reveal genetic information.  Title II of GINA does not prohibit an employee’s own health care provider from asking questions about genetic information.  This GINA Title II prohibition only applies to the employer or its agent.

Thoughts/takeaways: the key here is documentation or other confirmation of vaccination is coming from a healthcare provider unaffiliated with the employer.

Employer Incentives For COVID-19 Voluntary Vaccinations Under ADA and GINA

ADA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.16.  Does the ADA limit the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)?   (Updated 10/13/21)

No.  The ADA does not limit the incentives an employer may offer to encourage employees to voluntarily receive a COVID-19 vaccination, or to provide confirmation of vaccination, if the health care provider administering a COVID-19 vaccine is not the employer or its agent.  By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive.  See K.17.

As noted in K 4., the employer is required to keep vaccination information confidential under the ADA.

Thoughts/takeaways: the key here is the employer offering an incentive to employees getting the Covid-19 vaccination from a healthcare provider that is Not affiliated with their employer.

K.17.  Under the ADA, are there limits on the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination administered by the employer or its agent?   (Updated 10/13/21)

Yes.  When the employer or its agent administers a COVID-19 vaccine, the value of the incentive (which includes both rewards and penalties) may not be so substantial as to be coercive.  Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information to their employers or their agents. As explained in K.16., however, this incentive limit does not apply if an employer offers an incentive to encourage employees to be voluntarily vaccinated by a health care provider that is not their employer or an agent of their employer.

Thoughts/takeaways: different ballgame for when the employer or agent administers a Covid-19 vaccine. Here, you want to be very careful about the incentives you offer. Anything going beyond de minimis, might run the employer into trouble.

GINA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.18.  Does GINA limit the value of the incentive employers may offer employees if employees or their family members get a COVID-19 vaccination from a health care provider that is not affiliated with the employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)?   (Updated 10/13/21)

No.  GINA does not limit the incentives an employer may offer to employees to encourage them or their family members to get a COVID-19 vaccine or provide confirmation of vaccination if the health care provider administering the vaccine is not the employer or its agent.  If an employer asks an employee to show documentation or other confirmation that the employee or a family member has been vaccinated, it is not an unlawful request for genetic information under GINA because the fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member (known as “family medical history” under GINA), nor is it any other form of genetic information. GINA’s restrictions on employers acquiring genetic information (including those prohibiting incentives in exchange for genetic information), therefore, do not apply.

Thoughts/takeaways: no limit on the incentives an employer may offer to employees to encourage the employee or their family member to get a Covid-19 vaccine or provide confirmation of vaccination where the healthcare provider administering the vaccine is Not the employer or the employer’s agent.

L. Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates

The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request an exception, called a religious or reasonable accommodation, from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances.  If an employer shows that it cannot reasonably accommodate an employee’s religious beliefs, practices, or observances without undue hardship on its operations, the employer is not required to grant the accommodation.  See generally Section 12: Religious Discrimination; EEOC Guidelines on Discrimination Because of Religion. Although other laws, such as the Religious Freedom Restoration Act (RFRA), may also protect religious freedom in some circumstances, this technical assistance only describes employment rights and obligations under Title VII.

L.1. Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer?  If so, is there specific language that must be used under Title VII? (10/28/21)

Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances (hereafter called “religious beliefs”).  Under Title VII, this is called a request for a “religious accommodation” or a “reasonable accommodation.”

When making the request, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.”  However, they need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.

The same principles apply if employees have a religious conflict with getting a particular vaccine and wish to wait until an alternative version or specific brand of COVID-19 vaccine is available.

As a best practice, an employer should provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation.

As an example, here is how EEOC designed its own form for its own workplace. Although the EEOC’s internal forms typically are not made public, it is included here given the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic. (Note: Persons not employed by the EEOC should not submit this form to the EEOC to request a religious accommodation.)

Thoughts/takeaways: with respect to the reasonable accommodation request for a sincerely held religious belief, the activation of the request is the same as under the ADA. That is, magic words are not required.

L.2. Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value?  May the employer ask for additional information? (10/25/21)

Generally, under Title VII, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs.  However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information.  An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation.  See generally Section 12-IV.A.2: Religious Discrimination.

The definition of “religion” under Title VII protects nontraditional religious beliefs that may be unfamiliar to employers.  While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, employees may be asked to explain the religious nature of their belief and should not assume that the employer already knows or understands it.  By contrast, Title VII does not protect social, political, or economic views, or personal preferences.  Section 12-I.A.1: Religious Discrimination (definition of religion).  Thus, objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII.

The sincerity of an employee’s stated religious beliefs also is not usually in dispute.  The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.”  Section 12-I.A.2: Religious Discrimination (credibility and sincerity).  Factors that – either alone or in combination – might undermine an employee’s credibility include:  whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.  Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held.  An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.  No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

When an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation.

Thoughts/takeaways:

  1. Until many people started utilizing sincerely held religious beliefs as a way of circumventing Covid-19 vaccination requirements, the practice was that employers assumed that a request for religious accommodation was based on a sincerely held religious belief. They could do that because it doesn’t take much for something to rise to an undue hardship with respect to accommodating religious beliefs.
  2. If the employer has an objective basis for questioning the religious nature or the sincerity of a particular belief, the employer is justified in making a limited factual inquiry and seeking additional information. The employee then has to cooperate with any reasonable request from the employer for verification of the sincerity or religious nature of his or her belief or risk losing his or her claim that the employer improperly denied an accommodation.
  3. Unfamiliar religious beliefs can be a religious belief. Social, political, or economic views, or personal preferences do not qualify for protection.
  4. Factors the EEOC says to consider in trying to determine whether the employee has a credible sincerely held religious belief include: 1) whether the employee has acted in a manner inconsistent with the professed belief, though they do not need to be scrupulous in their observance; 2) whether the accommodation sought is a particularly desirable benefit likely to be sought for nonreligious reasons; 3) whether the timing of the request renders it suspect; and 4) whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. No one factor or consideration is determinative, and an employer needs to evaluate religious objections on an individual basis.
  5. With respect to §4 of my thought takeaways of this section, immediately above, it seems to me that it would be very hard to apply these EEOC factors in practice.

L.3. How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation? (10/25/21)

Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment.  For suggestions about types of reasonable accommodations for unvaccinated employees, see K.6, above.  In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances without imposing an undue hardship.

If an employer demonstrates that it is unable to reasonably accommodate an employee’s religious belief without an “undue hardship” on its operations, then Title VII does not require the employer to provide the accommodation.  42 U.S.C. § 2000e(j).  The Supreme Court has held that requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief is an undue hardship.  Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.

Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.  For a more detailed discussion, see Section 12-IV.B: Religious Discrimination (discussing undue hardship).

An employer will need to assess undue hardship by considering the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve.  An employer cannot rely on speculative hardships when faced with an employee’s religious objection but, rather, should rely on objective information. Certain common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals).  Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).

Thoughts/takeaways: as mentioned above, undue hardship when it comes to accommodating religious views, for now anyway, is not at all the same thing as undue hardship when it comes to accommodating disabilities. Anything more than de minimus is an undue hardship for purposes of accommodating religious beliefs. It is proper to consider the burden of not getting a Covid-19 vaccination on the employer’s business.

L.4. If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, does it have to grant the requests of all employees who seek an accommodation because of sincerely held religious beliefs? (10/25/21)

No.  The determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context. When an employer is assessing whether exempting an employee from getting a vaccination would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation.  A mere assumption that many more employees might seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship, but the employer may take into account the cumulative cost or burden of granting accommodations to other employees.

Thoughts/takeaways: figuring out the proper accommodation for sincerely held religious beliefs requires an individualized analysis just like the ADA.

L.5. Must an employer provide the religious accommodation preferred by an employee if there are other possible accommodations that also are effective in eliminating the religious conflict and do not cause an undue hardship under Title VII? (10/25/21)

No.  If there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the sincerely held religious belief without causing an undue hardship under Title VII, the employer may choose which accommodation to offer.  If more than one accommodation would be effective in eliminating the religious conflict, the employer should consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee.  If the employer denies the employee’s proposed accommodation, the employer should explain to the employee why the preferred accommodation is not being granted.

An employer should consider all possible alternatives to determine whether exempting an employee from a vaccination requirement would impose an undue hardship.  See, e.g., K.2. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.

Thoughts/takeaways: just like the ADA, an employer can choose the accommodation to offer. As with the ADA, the employer should consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee if there is more than one reasonable accommodation that will work. Also, just like the ADA the employer needs to look at all possible alternatives short of an undue hardship.

L.6. If an employer grants a religious accommodation to an employee, can the employer later reconsider it? (10/25/21)

The obligation to provide religious accommodations absent undue hardship is a continuing obligation that takes into account changing circumstances.  Employees’ religious beliefs and practices may evolve or change over time and may result in requests for additional or different religious accommodations.  Similarly, an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.  As a best practice, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it and consider whether there are alternative accommodations that would not impose an undue hardship.

Thoughts/takeaways: while this is all true and it is also true for the ADA, taking away accommodations is always a recipe for litigation. So if you are going to take away accommodations, you definitely want to to do that very deliberately and line up all your ducks in a row before doing it.

M. Retaliation and Interference

The anti-retaliation protections discussed here only apply to the exercise of rights under the federal equal employment opportunity (EEO) laws. Information about similar protections under other federal workplace laws, such as the Family and Medical Leave Act or the Occupational Safety and Health Act, is available from the U.S. Department of Labor. Information about similar protections under the Immigration and Nationality Act’s anti-discrimination provision, which prohibits some types of workplace discrimination based on citizenship status, immigration status, or national origin, and protects against retaliation for asserting those rights, is available from the Civil Rights Division of the U.S. Department of Justice.

M.1.  Do job applicants and employees (including former employees) have protections from retaliation for exercising equal employment opportunity (EEO) rights in connection with COVID-19? (11/17/21)

Yes.  Job applicants and current and former employees are protected from retaliation by employers for asserting their rights under any of the federal EEO laws.  The EEO laws prohibit workplace discrimination based on race, color, sex (including pregnancy, sexual orientation, and gender identity), national origin, religion, age (40 or over), disability, or genetic information.  Speaking out about or exercising rights related to workplace discrimination is called “protected activity.”

Protected activity can take many forms.  For example, an employee complaining to a supervisor about coworker harassment based on race or national origin is protected activity.  Witnesses to discrimination who seek to assist individuals affected by discrimination are also protected.  Engaging in protected activity, however, does not shield an employee from discipline, discharge, or other employer actions taken for reasons unrelated to the protected activity.

M.2. What are some examples of employee activities that are protected from employer retaliation? (11/17/21)

  • Filing a charge, complaint, or lawsuit, regardless of whether the underlying discrimination allegation is successful or timely. For example, employers may not retaliate against employees who file charges with the EEOC alleging that their supervisor unlawfully disclosed confidential medical information (such as a COVID-19 diagnosis), even if the EEOC later decides there is no merit to the underlying charges.  Moreover, a supervisor may not give a false negative job reference to punish a former employee for making an EEO complaint, or refuse to hire an applicant because of the applicant’s EEO complaint against a prior employer.
  • Reporting alleged EEO violations to a supervisor or answering questions during an employer investigation of the alleged harassment. For example, an Asian American employee who tells a manager or human resources official that a coworker made abusive comments accusing Asian people of spreading COVID-19 is protected from retaliation for reporting the harassment. Workplace discrimination laws also prohibit retaliation against employees for reporting harassing workplace comments about their religious reasons for not being vaccinated. Similarly, workplace discrimination laws prohibit retaliation against an employee for reporting sexually harassing comments made during a work video conference meeting.
  • Resisting harassment, intervening to protect coworkers from harassment, or refusing to follow orders that would result in discrimination. For example, workplace discrimination laws protect a supervisor who refuses to carry out management’s instruction not to hire certain applicants based on the sex-based presumption that they might use parental leave or have childcare needs, or to steer them to particular types of jobs.
  • Requesting accommodation of a disability (potentially including a pregnancy-related medical condition) or a religious belief, practice, or observance regardless of whether the request is granted or denied. For example, the EEO laws prohibit an employer from retaliating against an employee for requesting continued telework as a disability accommodation after a workplace reopens.  Similarly, requesting religious accommodation, such as modified protective gear that can be worn with religious garb, is protected activity.  Requests for accommodation are protected activity even if the individual is not legally entitled to accommodation, such as where the employee’s medical condition is not ultimately deemed a disability under the ADA, or where accommodation would pose an undue hardship.

Thoughts/takeaways: I am already seeing a lot of cases coming my way where a person with underlying health conditions requests the accommodation of remote work. How that request gets handled can very much depend on whether your state has policies that are anti mask and anti-vaccine or not, particularly so if the employee is in the public sector.. The key is going to be what are the essential functions of the job and can they do that job with or without reasonable accommodations. You can bet that the fact that they did their job effectively remotely while everybody was on lockdown will be used by plaintiff attorneys to show that they can do the essential functions of the job now with or without reasonable accommodations.

M.3. Who is protected from retaliation? (11/17/21)

Retaliation protections apply to current employees, whether they are full-time, part-time, probationary, seasonal, or temporary. Retaliation protections also apply to job applicants and to former employees (such as when an employer provides a job reference). In addition, these protections apply regardless of an applicant’s or employee’s citizenship or work authorization status.

Thoughts/takeaways: any kind of employee, applicant, and former employees are all protected from retaliation. Those protections apply regardless of an applicant’s or employee’s citizenship or work authorization status.

M.4. When do retaliation protections apply? (11/17/21)

Participating in an EEO complaint process is protected from retaliation under all circumstances.

Other acts by a current, prospective, or former employee to oppose discrimination are protected as long as the employee is acting on a reasonable good faith belief that something in the workplace may violate EEO laws, and expresses those beliefs in a reasonable manner.  An employee is still protected from retaliation for making a complaint about workplace discrimination even if the employee does not use legal terminology to describe the situation.

Thoughts/takeaways:

  1. Because participating in the EEO complaint process is protected from retaliation under all circumstances, it can be very important for a plaintiff attorney to get that EEOC complaint filed quickly so as to minimize any possibilities of retaliation.
  2. Many places have internal grievance procedures but nothing requires a plaintiff to exhaust that internal grievance procedure first. A plaintiff will want to consult with their attorney to figure out whether the internal grievance procedure should be utilized or not. Since the EEOC does ask whether you went through internal grievance procedures when you file the complaint with them, you want to remember that the law does not require a futile act where the plaintiff knows that the internal appeal will be useless.
  3. Good faith can be determined as a matter of law. I am aware of cases where the plaintiff had a good faith belief subjectively that what they were doing was protected activity. However, the law was such that no person knowing the law would possibly believe that. In that situation, courts have said that a plaintiff could not have a reasonable good faith belief that something in the workplace was violating the EEO laws.

M.5. When is an employer action based on an employee’s EEO activity serious enough to be unlawful retaliation? (11/17/21)

Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity.  Depending on the facts, this might include actions such as denial of promotion or job benefits, non-hire, suspension, discharge, work-related threats, warnings, negative or lowered evaluations, or transfers to less desirable work or work locations.  Retaliation could also include an action that has no tangible effect on employment, or even an action that takes place only outside of work, if it might deter a reasonable person from exercising EEO rights.  The fact that an individual is not actually deterred from opposing discrimination or participating in an EEO complaint-related process or activity does not preclude an employer’s action from being considered retaliatory.

However, depending on the specific situation, retaliation likely would not include a petty slight, minor annoyance, or a trivial punishment.

Thoughts/takeaways: the standard is an objective one focusing on the reasonable person. The key is whether the action deters a reasonable person from exercising EEO rights.

M.6.  Does this mean that an employer can never take action against someone who has engaged in EEO activity? (11/17/21)

No.  Engaging in protected EEO activity does not prevent discipline of an employee for legitimate reasons.  Employers are permitted to act based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline.  For example, if an employee performs poorly, has low productivity, or engages in misconduct, an employer may respond as it normally would, even if the employee has engaged in protected activity.  Similarly, an employer may take non-retaliatory, non-discriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity (e.g., an accommodation request).

Thoughts/takeaways: this is certainly all true. However, make sure that everything is lined up properly as the risk of litigation is high in the situation.

M.7.  Does the law provide any additional protections to safeguard ADA rights? (11/17/21)

Yes.  The ADA prohibits not only retaliation for protected EEO activity, but also “interference” with an individual’s exercise of ADA rights.  Under the ADA, employers may not coerce, intimidate, threaten, or otherwise interfere with the exercise of ADA rights by job applicants or current or former employees.  For instance, it is unlawful for an employer to use threats to discourage someone from asking for a reasonable accommodation.  It is also unlawful for an employer to pressure an employee not to file a disability discrimination complaint.  The ADA also prohibits employers from interfering with employees helping others to exercise their ADA rights.

The employer’s actions may still violate the ADA’s interference provision even if an employer does not actually carry out a threat, and even if the employee is not deterred from exercising ADA rights.

 

Thoughts/takeaways: interference is an extremely underutilized provision of the ADA. The most common place that I see it is when a higher up gets involved with the accommodation decision instead of the people directly involved with the workers seeking the accommodation. The other place that I see it a lot is in higher education where a professor refuses to carry out accommodations put in place by disability services. For how to go about proving up and interference claim, we discussed that here. I do not have an answer as to why interference claims simply do not come up a lot. That very well could change in the future.

Print:
EmailTweetLikeLinkedIn
Photo of William Goren William Goren

William Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a…

William Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.