As Workplaces Open, EEOC Warns Employees about Pandemic-Related Discrimination

Last week, the EEOC updated its guidance on COVID-19 and equal employment opportunity laws, reminding employees that federal law still protects them against age, sex, race and national origin discrimination during the pandemic.  The agency’s warnings – reiterating earlier advice to guard against COVID-related discrimination – comes as many workplaces across the country begin returning to in-person operations.

The new guidance alerts employees to the potential for unlawful age discrimination even from well-meaning employers as they navigate the return to the workplace.  For example, the EEOC warns employees over 65 that – while employers may benevolently ask them to continue working from home to avoid potential COVID-19 exposure, even as younger employees return to the office – they cannot legally be involuntarily excluded from the workplace simply because of their age.  Though older employees’ age places them at greater risk for severe complications from the virus, the Age Discrimination in Employment Act bars employers from treating them any differently than their younger co-workers, unless they request special treatment.  However, employees over 65 may still ask for accommodations of their own volition, and their employers are still “free to provide [them] flexibility…even if it results in younger workers age 40-64 being treated less favorably based on age in comparison.”  In addition, some older employees may have medical conditions that entitle them to reasonable accommodations under the Americans with Disabilities Act (ADA).

The EEOC also warns employees not to accept unintentional pregnancy discrimination as people return to work.  While businesses may be inclined to keep pregnant employees home due to their higher risk from COVID-19, the agency notes that – under Title VII of the Civil Rights Act – pregnant employees cannot be prevented from coming back to work against their will on the basis of their pregnancy alone.  However, as with older employees, pregnant employees may ask for flexible working arrangements, which employers are encouraged to provide, and may have medical conditions that qualify for reasonable accommodations under the ADA.

In requesting telework or other accommodations for childcare duties due to school closures during the pandemic, parents are also reminded to beware of the potential for sex discrimination.  If employers choose to provide flexible working arrangements for employees with children, Title VII requires that these employees not be treated differently based on gendered assumptions about who is likely to have caregiving responsibilities.  Employees requesting childcare-related accommodations should thus be on the lookout for differential treatment of mothers and fathers.

Finally, the updated guidance directs employees of Asian descent to be vigilant in guarding against harassment, as authorities have noted an increase in workplace bullying based on race and national origin due to baseless associations of Asian and Asian-American workers with COVID-19.  Those experiencing harassment should alert their employers, who have a duty to halt demeaning, derogatory or hostile remarks, whether communicated in person or through digital channels.

For more information on employers’ anti-discrimination obligations and employees’ rights during the pandemic, please contact our employment team.