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EEOC Adds Guidance on Retaliation and COVID-19 Related Matters

On Wednesday, November 17, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Technical Assistance (guidance) to include more information about employer retaliation in pandemic-related employment situations.

What is the Purpose of the Updated Guidance?

The updated guidance intends to explain and clarify the rights of employees and job applicants who believe they suffered retaliation for protected activities under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, or other employment discrimination laws. The guidance explains how these rights are balanced against an employer’s need to enforce COVID-19 health and safety protocols.

According to EEOC Chair, Charlotte A. Burrows, “retaliation is the most frequently alleged form of discrimination in the EEOC’s charges overall and has been at the top for too many years. The COVID-19 pandemic has created new situations and additional challenges, but it is no excuse to retaliate against people for opposing employment discrimination. 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.”

What are the Key Highlights of the Updated Guidance?

  • Retaliation Protections. Job applicants and current and former employees are protected from retaliation by employers for asserting their rights under any of the EEOC-enforced anti-discrimination laws
  • Protected Activity. Protected activity can take many forms, including filing a charge of discrimination; complaining to a supervisor/manager about coworker harassment; or requesting an accommodation for a disability or a religious belief, practice, or observance, regardless of whether the request is granted or denied.
  • ADA Interference. The ADA prohibits not only retaliation for protected activity, but also “interference” with an individual’s exercise of ADA rights.

What is Retaliation?

To decide whether retaliation has occurred, the EEOC will consider whether an employer’s action could deter a reasonable person from engaging in protected activity. Retaliatory actions may include, but are not limited to:

  • Denying a promotion or job benefits;
  • Refusing to hire;
  • Suspending or dismissing;
  • Making work-related threats or warnings;
  • Providing negative or lowered evaluations; or
  • Transferring an employee to less-desirable work or work locations.

Additional Information

This updated guidance also supports the EEOC’s participation in an interagency initiative, which was launched on November 17, 2021, between the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) with the goal of ending retaliation against workers who exercise their protected labor and employment law rights. The interagency initiative includes collaboration among these agencies to protect workers on issues of unlawful retaliatory conduct, educate the public and engage with employers, business organizations, labor organizations and civil rights groups in the coming year.

Next Steps for Employers

An interagency initiative is likely to mean increased scrutinization of employers’ practices and increased enforcement efforts, as such, it is strongly recommended that employers review the guidance (refer to the newly added Section M) and consult with legal counsel prior to responding to employee claims of discrimination, harassment or retaliation and requests for accommodations, particularly, where those complaints are centered on COVID-19 health and safety protocols.

Employers should also be aware of any employee protections under state and local laws related to discrimination, harassment, and retaliation.

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