The U.S. Equal Employment Opportunity Commission (EEOC) has been inundated with COVID-related claims brought by workers charging that employers discriminated against them in violation of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other anti-bias laws.
The ADA, as the name implies, prohibits employment discrimination based on disability. Title VII protects employees against discrimination based on race, color, sex, national origin and, most importantly for COVID-related claims, religion. The EEOC is responsible for enforcing these and other federal laws that make it illegal to discriminate against a job applicant or an employee. Filing a charge with the EEOC is a prerequisite for workers who want to file anti-discrimination law suits against employers. The EEOC can file its own suits as well.
According to Bloomberg Law,
Since April 2020 through December 2021, the U.S. Equal Employment Opportunity Commission has received roughly 6,225 Covid-related charges of discrimination under federal civil rights laws, the latest agency data show. In addition, the commission received more than 2,700 vaccine-related charges, most of which were in 2021 when vaccine requirements were introduced. . .
About 66% of the Covid-related charges raised ADA violations, totaling around 4,125. Meanwhile, the ADA was cited in 300 of the 2,700 complaints tied to vaccines.
The EEOC has not said which of the other anti-bias laws were cited in the vaccine-related claims but, as Bloomberg Law noted, companies have reported a flood of religious exemption requests under Title VII.
The EEOC apparently views these developments as of a piece with the virus’s adverse effects on disadvantaged groups in general. In a statement issued in early March, the agency said:
The COVID-19 pandemic has proved to be a civil rights crisis in addition to a public health crisis and economic crisis . . . As we heard at our public hearing last year, it has disproportionately impacted people of color, women, older workers, individuals with disabilities, and other vulnerable workers.
The ADA and Title VII require employers to provide a reasonable accommodation to a worker’s disability or religion unless doing so would pose an undue hardship. But employers can raise a “direct threat” defense to fire or refuse to hire a worker if the worker’s disability poses a threat to the health and safety of other individuals.
As one might surmise, the intersection COVID and employment discrimination law raises many novel and difficult questions for workers and their employers, including what qualifies as a “disability” or a “reasonable accommodation” and what constitutes a “direct threat”. The EEOC previously issued guidance for addressing these and other COVID issues.
That guidance made clear, for example, that not every person with the virus will qualify as disabled, but said the virus’s aftereffects [such as long COVID] should be considered under the ADA’s three definitions for a disability. Those cover actual physical or mental impairments that substantially limit a major life activity; an employer’s perception that a worker has a disability; or the worker’s record of impairment.
As for a worker claiming a religious exemption to an employer’s vaccine mandate, the EEOC’s guidance said that the employer must provide a reasonable accommodation “for the religious belief, practice, or observance” that prevents the worker from receiving the vaccine under Title VII, unless that accommodation poses more than a “de minimis” cost or burden.
If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information . . .
Further complicating the issue, the EEOC advised that “religion” is not limited to established religions like Christianity, Judaism and Islam. It also includes “religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people”. As well, “nontheistic beliefs can also be religious for purposes of the Title VII exemption as long as they ‘occupy in the life of that individual’ ‘a place parallel to that filled by. . . God in traditionally religious persons'”. Thus, “the non-discrimination provisions of the statute also protect employees who do not possess religious beliefs or engage in religious practices”.
Anti-vaxxer misinformation campaigns notwithstanding, the EEOC guidance also clarified that, since COVID-19 vaccines don’t use technology that impacts employees’ DNA in any way, the Genetic Information Nondiscrimination Act (GINA), also enforced by the EEOC, is not applicable to COVID-19 vaccine issues in the workplace. GINA prohibits employers from “using, acquiring, or disclosing genetic information”.
As has been true since Title VII was enacted in 1964, the meaning of terms in the federal anti-bias statutes has been fleshed out in litigation, a very expensive way for employers to find out whether or not their conduct violated the law. And it can be a long wait for a definitive ruling. It was not until 2020 that the U.S. Supreme Court decided that Title VII’s prohibition against sex discrimination covered LGBTQ workers, an issue that had remained up in the air for years and about which different presidential administrations (and thus the federal agencies they control) held opposing positions.
We are now at the very beginning of a long slog through administrative rulings and court decisions that will flesh out the application of employment discrimination laws to COVID-19. Even when the pandemic fades, long COVID will require workers and their employers to navigate this new territory.
So, off we go. Since the start of the COVID-19 pandemic, the EEOC itself has brought at least three lawsuits related to disability bias and COVID.
In its first disability accommodation lawsuit connected to the COVID-19 pandemic, the EEOC alleged that a Georgia pharmaceuticals manufacturing facility manager was fired after her employer denied her request to continue working from home because a heart condition heightened her COVID-19 risk. According to the complaint, other employees were allowed to continue working from home after the facility reopened but the manager’s request was denied and she was terminated.
The EEOC also filed suits, against a pharmacy and a coffee house, in Texas. According to the EEOC, a pharmacy discriminated against a pharmacy technician who suffered from asthma. He asked to wear a face mask to help protect him from the virus as an accommodation to his disability. The complaint alleges that the technician was harassed because of this accommodation request, taunted and humiliated for questioning management’s policy prohibiting masks, and sent home on at least two occasions after asking to wear a mask, all of which lead him to quit his job.
(We have to ask: What sort of pharmacy prohibits mask wearing? Not one I’d want to trade with.)
In the second Texas suit, the EEOC’s complaint alleged that a coffee shop violated the ADA when it denied two baristas with disabilities reasonable accommodations and terminated their employment. Rather than provide the disabled employees reasonable accommodations to minimize customer contact, according to the EEOC, the baristas were not allowed to return to work until a vaccine for COVID-19 was developed, despite the fact that they were ready and willing to work.
According to one lawyer practicing in this area:
Regardless of the outcome, the case serves as a reminder that wise employers should not refuse to allow employees to work based in the hopes of protecting employees from illness. Employers must first ascertain whether there is a direct threat to the employee or others. Only where an employee would pose a substantial risk of significant harm to his/ her own safety or the safety of others that cannot be significantly reduced or eliminated by reasonable accommodations should an employer deny an employee with a disability the opportunity to work.
Great advice. But you can bet that for every defense expert who will testify that a particular employee posed “a substantial risk of significant harm” that “cannot be significantly reduced or eliminated by reasonable accommodations” you can find a plaintiff’s expert willing to downplay the dangers the employee presented to fellow workers (and vice versa). In fact, testifying as plaintiffs’ experts in anti-discrimination cases could be a whole new income stream for Great Barrington Declaration types who make a living discounting the dangers of COVID-19.
In sum, long COVID won’t be the only lingering manifestation of the pandemic. We’ll have long-lasting litigation (and attorneys’ fees) as well.