EEOC Updates COVID Guidance to Address Pandemic-Related Workplace Retaliation

he Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance to address retaliation in pandemic-related employment situations. This was prompted in part by the fact that retaliation has been the most frequently alleged form of discrimination for many years. According to EEOC Chair Charlotte Burrows, the update “provides additional clarity on how our laws balance workers’ rights to speak up without fear of retaliation against employers’ responsibilities to create a healthy and safe work environment.

The anti-retaliation updates apply to the exercise of rights under the federal equal employment opportunity (EEO) laws. Though the laws remain the same, the updated technical assistance communicates the EEOC’s position when it comes to COVID-related retaliation claims. The EEOC notes that retaliation protections apply to current employees, whether they are full-time, part-time, probationary, seasonal or temporary. They also apply to job applicants and to former employees (such as when an employer provides a job reference).

Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity, such as reporting or resisting EEO violations, filing a charge of discrimination or requesting an accommodation. Depending on the facts, unlawful retaliation can include:

• denial of promotion or job benefits;
• non-hire;
• suspension or discharge;
• work-related threats or warnings;
• negative or lowered evaluations; or
• transfers to less desirable work or work locations.

Retaliation could also include an action that has no tangible effect on employment, or even an action that takes place only outside of work, if it might deter a reasonable person from exercising EEO rights. However, depending on the specific situation, retaliation likely would not include a petty slight, minor annoyance, or a trivial punishment.

The EEOC notes that engaging in protected EEO activity does not prevent discipline of an employee for legitimate reasons. Employers are permitted to act based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline.  This would include non-retaliatory, non-discriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity, like an accommodation request.

To reduce the likelihood of claims, employers should proceed cautiously when presented with any COVID-19-related matter. This may include seeking counsel from a licensed professional. Employers need Employment Practices Liability Insurance to cover the high cost of defending actual and alleged claims of unlawful conduct. Why? The EEOC is watching and offending employers are paying.

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