On November 17, 2021, the EEOC updated its COVID-19 technical assistance to include a section covering retaliation. This guidance mostly recaps existing retaliation protections, but it does provide some helpful examples of retaliation springing from the COVID-19 context. Retaliation is consistently one of the most frequently pled claims with the EEOC and corresponding state antidiscrimination agencies, so employers should become familiar with this guidance and keep an eye out for other scenarios that might constitute “protected activity” and retaliation relating to COVID-19 issues. Here’s what the guidance says, and here’s what we recommend employers keep in mind as they continue to navigate workplace issues during the pandemic.
The Guidance
The EEOC’s updated guidance explains retaliation protections for employees and applicants who believe they have suffered retaliation for engaging in activities protected by federal employment discrimination laws, including the ADA and Title VII. This guidance largely echoes existing rules and protections, including who is protected from retaliation and what action by the employer may be actionable.
Most helpfully, the guidance gives some specific examples of protected activity tied to COVID-19 issues. These include:
- Filing a charge with the EEOC alleging that the employer unlawfully disclosed their COVID-19 diagnosis;
- Telling a manager that a coworker is accusing Asian people of spreading COVID-19;
- Reporting harassing comments about an employee’s religious reasons for remaining unvaccinated;
- Requesting disability accommodations, such as continued telework; and
- Requesting religious accommodations, such as different PPE that the employee can wear with their religious garb.
Things to Keep in Mind
Protected Activity: I know it when I see it . . . I think. Spotting protected activity can be tricky. It’s important to keep in mind that certain conduct may be protected, even if the employee’s actions are rooted in a mistaken belief about how the law works. For example, in a recent Tenth Circuit case, a U.S.-based employee received internal complaints of harassment from two other workers in the company’s Philippines office. The employee reported these complaints to her supervisor and HR, and she was terminated shortly after. The employee sued for retaliation and, even though Title VII doesn’t protect aliens working for a U.S. company in another country, the Court determined that the employee engaged in protected activity because she reasonably believed the reported conduct was unlawful.
Similarly, requesting an accommodation for disability or religious reasons is protected activity, even if the individual is not legally entitled to the accommodation. For example, an employee who requests telework has engaged in protected activity, even if the employer decides the employee doesn’t have a disability under the ADA or the accommodation would cause an undue hardship.
Adverse action is broader than you might think. To establish retaliation, employees have to show that they suffered a “materially adverse action.” Action is “materially adverse” if it might deter a reasonable person from engaging in protected activity. This might include transferring the employee to a less desirable work location, issuing a negative performance evaluation, or removing supervisory responsibilities from an employee. Note that this is a lower threshold than disparate treatment claims under various employment discrimination laws, meaning it is easier to potentially fall into a retaliation claim after an employee engages in protected activity.
Time may not heal all wounds, but it sure does help. Showing protected activity and a materially adverse action alone isn’t enough to establish a retaliation claim. Employees also have to show that the employer took this action because of their participation in protected activity. This is often the most difficult task for employees. But close timing between the protected activity and the materially adverse action can help the employee show causation. And the closer the timing, typically the stronger the employee’s claim. Lawyers defending employers against retaliation claims have an easier time when there is some temporal distance between the protected activity and the adverse action – even a few months. But, you do have a business/organization to run. If applying a legitimate and consistently applied disciplinary procedure is appropriate under the circumstances – even against an employee who has recently engaged in protected activity, just be sure the reasons for any adverse action are well-documented.
