EEOC Expands Its COVID-19 Guidance to Address Retaliation

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Throughout the pandemic, the Equal Employment Opportunity Commission has continuously updated its COVID-19 Guidance to provide employers with assistance on issues arising under the antidiscrimination laws that it enforces. This month the EEOC added a new section, simply reminding employers of the existing prohibition on retaliation against employees for exercising rights under these laws. This further supports the interagency initiative against retaliation, discussed elsewhere in this E-Update.

As the EEOC notes, the key points are as follows:

  • 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 can take many forms, including filing a charge of discrimination; complaining to a supervisor about coworker harassment; or requesting accommodation of a disability or a religious belief, practice, or observance, regardless of whether the request is granted or denied.
  • Additionally, the ADA prohibits not only retaliation for protected EEO activity, but also “interference” with an individual’s exercise of ADA rights.

What is retaliation? The Guidance additionally explains that retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in such activity.  Whether the action is retaliatory depends on the circumstances. Examples might include actions such as denial of promotion or job benefits, non-hire, suspension, discharge, work-related threats, warnings, negative or lowered evaluations, or transfers to less desirable work or work locations.  It can also include actions that have no tangible effect on employment (e.g. reduced communication, exclusion from meetings, unreasonable deadlines, etc.), or even an action that takes place only outside of work. It does not typically include, however, “a petty slight, minor annoyance, or a trivial punishment.”

Legitimate discipline is permitted. Additionally, the EEOC makes clear that employers may still discipline employees for legitimate reasons, even if they have asserted rights under the antidiscrimination. In the context of the current pandemic, “an employer may take non-retaliatory, non-discriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity (e.g., an accommodation request).”