While nerds like me were flooding LinkedIn with status updates about Sixth Circuit this and OSHA ETS that, the U.S. Equal Employment Opportunity Commission was
hosting a secret “virtual dialogue” with the employer Illuminati about retaliation updating its COVID-19 Technical Assistance to include additional information on retaliation.
No, not really. But that won’t stop me from blogging about it, and, perhaps, you may learn a thing or two.
Per the EEOC press release, “the updates 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 technical assistance explains how these rights are balanced against employers’ needs to enforce COVID-19 health and safety protocols.”
Among the “key guidance” that the EEOC spotlights, “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.
The ADA “interference” phase sounds new, but the concept should be familiar. (If it’s not, stop reading this, buy employment practices liability insurance for your business right now, and thank me later.)
The EEOC also provides some examples of retaliatory behavior. Here’s one that stood out among the others:
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.
However, employers can always discipline an employee for legitimate reasons. “Employers are permitted to act based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline,” reminds the EEOC.
You can read all of the EEOC updated COVID-19 guidance here.