Back to “Normal”?

Employment Issues in the Post-COVID World

Mario G. Perez, Jr

Currently, the COVID-19 pandemic is retreating. Researchers mostly agree that the omicron strain, and its variants, though more transmissible, are milder, and are hopeful that subsequent COVID-19 variants may follow this pattern. Herd immunity, brought on because of vaccines and natural infection, is at hand if we have not achieved it already. As we move past summer and enter the winter, cases may spike on a short-term relative basis, but the overall outlook is positive. In sum, it is the end of the COVID-19 pandemic as we know it. But will the effects of COVID-19, particularly those felt in the workplace, continue? The answer seems to be yes, at least for now. The effects of the COVID-19 pandemic continue to have an impact on employment issues, especially concerning charges of unlawful discrimination. For example, the Equal Employment Opportunity Commission (“EEOC”), which handles employee administrative claims of workplace discrimination, reports the heaviest workloads in agency history. Most of these claims, over twothirds, allege that an employer has engaged in disability-related discrimination. The EEOC may investigate a wide variety of discrimination-related claims, including disability, age, sex, and religious discrimination. Most EEOC investigations begin when an employee files a charge of discrimination. The EEOC will then usually request a position statement from the employer. An EEOC investigation can be time consuming and costly, so preparing

the position statement to demonstrate to the EEOC that discrimination has not occurred at the outset is important. Bad position statements often bring bad results. At best, an inadequate response may delay the EEOC’s investigation. At worst, if the employer’s response is unsatisfactory, the EEOC may begin a formal investigation.

The reasons for the dramatic increase in filings of EEOC charges of discrimination are several. The effect is clear: these interactions with the EEOC, whether directly or indirectly, have resulted in an increased knowledge among employees of their workplace rights and the EEOC process in general. Surely, more employees now know, or have some modicum of understanding, that the law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. By discrimination, the law refers to unlawful discrimination. That is, discrimination on the basis of race, color, religion, national origin, sex, and disability. Additionally, employees may be more apt to allege that an employer’s particular practice is retaliation, which occurs when an employer takes adverse action against an employee who files a charge of discrimination or participates in an employment discrimination investigation or lawsuit.

Among the avalanche of EEOC filings, disabilityrelated claims are most common. Within this category, failure to provide reasonable accommodation is the usual culprit. The Americans with Disability Act (“ADA”) governs reasonable requests for accommodation. Under the ADA, an employer must grant reasonable requests for accommodation to qualifying individuals unless the employer would suffer undue hardship. Examples of reasonable accommodation include granting leaves of absences, providing aides, and/or modifying duties. Sometimes, determining which reasonable accommodation could work requires creativity. Whether an accommodation is reasonable and should be granted is fact intensive, which makes adequately documenting the request and subsequent consideration of the request a prime consideration. The Job Accommodation Network, known as “JAN,” is an incredible resource provided by the U.S. Department of Labor for employers faced with the uncertain process that is handling an employee’s request for accommodation. Among other things, JAN provides a form for employees to fill out to request reasonable accommodation. Documenting the entire process is essential and asking employees to submit a written request and accompanying documentation is usually the first step. Other, less common, claims of discrimination include allegations of sex and religious discrimination. The prohibition against discrimination on the basis of religion includes all aspects of religious observances and practice, as well as religious belief. An employer is required to accommodate an employee’s religious observance or belief unless the employer demonstrates that it will suffer undue hardship to its business operations. The legal definition of “religion” is nearly boundless. Indeed, the EEOC and courts routinely admit that they are unfit to decide whether a religious belief is sincerely held. Thus, they will readily err on the side of the employee, presuming that the religious observance or belief is genuine absent clear and overwhelming evidence to the contrary. Some employees learned about the legal protections for religious beliefs, and put them to the test, when challenging public health measures. With some of these employees arguing that wearing a face mask represented participation in satanic ritual in violation of their religious beliefs, the EEOC is surely to make some interesting decisions regarding religious-discrimination claims. The EEOC also has jurisdiction over claims of sex discrimination. In the current atmosphere of heated legal discussion, the definition of sex is a particularly ardent topic. While presenting an interesting academic topic, as a practical matter, ensuring that employment practices comply with the law’s prohibitions against sex discrimination is a difficult task. Generally, sex discrimination occurs when a person is treated less favorably because of that person’s “sex.” “Sex” includes sexual orientation, gender identity or expression, pregnancy or pregnancy-related condition (including lactation), or a sex stereotype. Open ears, heart and mind should be an employer’s mantra when adjusting to the changing definition of “sex” and its impact in the workplace.

The COVID-19 pandemic, among other effects, produced an avalanche of employment-related charges of discrimination filed with the EEOC. The current estimate for the EEOC to investigate an employee’s claim of workplace discrimination is over two years. As we move past the COVID-19 pandemic, the question remains whether the dramatic increase in claims is short lived, or whether it is the new normal. Considering the difficulties lived during the pandemic, it is a fortunate question to ask.