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EEOC Update: Know Your Rights - COVID-19 Retaliation

Posted by Giovanna A. D'Orazio | Nov 18, 2021

Today, the EEOC once again updated its COVID-19 guidance on the federal equal employment laws, this time to explain and clarify issues relating to retaliation against employees for exercising their protected rights.  The update appears at Section M of the EEOC's COVID-19 Guidance document.

The federal equal employment laws primarily implicated by the pandemic are the Americans with Disabilities Act and Title VII which prohibits discrimination against a variety of protected statuses including sex, religion and race.  With respect to vaccines - a hot topic right now - the ADA and the religion provision of Title VII are the most directly at issue.

What is retaliation?  Retaliation is when an employer takes an adverse action against you for engaging in protected activity.  Okay, so, what is protected activity?  Often the protected activity is a complaint of discriminatory conduct or harassment.  To be protected from retaliation, the complaint has to be about something prohibited by the ADA or Title VII, like sexual harassment or harassment or discrimination based on someone's race or disability.  When you make that type of complaint, you also have to have a good faith reasonable belief that the conduct you are complaining about violates the law.  What is NOT included?  General workplace bullying or inappropriate behavior, disagreements with your boss or superiors, or really any other "bad" behavior that is not because of your or someone else's protected status.

Requests for reasonable accommodations of disabilities and sincerely held religious beliefs are also considered protected activity.  Because we are seeing a lot of requests for medical or religious exemptions in connection with vaccine mandates, it's important to note that, to fall within the protection of the statute, you actually have to meet the legal definition of a disability or sincerely held religious belief in the first place.  Once you fall within the statute, you're still protected from retaliation even if the request is appropriately denied by your employer and you're not entitled to the accommodation you requested.  With respect to religion, it's important to note that political or philosophical objections relating to your freedom to make your own decisions are not religious beliefs and, from our perspective (someone may disagree!), a request for an accommodation based on one of those reasons would not be protected activity.  

Finally, under Title VII treating a protected group unequally because of their protected status is illegal.  This can come up in the COVID-19 context if, for example, a certain group of people are allowed to work remotely and another group is not, or a certain group is targeted for termination.  Favoritism to individuals outside of a protected class is a common piece of evidence in a discrimination case.  So a complaint that a COVID-19 policy or vaccine mandate is being applied in a discriminatory manner, could also be protected activity. 

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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