Workplace Discrimination and Harassment During COVID-19 & Employers' Legal Obligations
The COVID-19 pandemic has brought swift and staggering changes to American workplaces. During this unprecedented time, employers and employees should remain aware that existing employment laws still apply. Employees are still protected against discrimination, harassment, and related misconduct in the workplace. This is true even if they are not working at a conventional office.
Employment in almost all states is at will. This means that an employer can fire an employee, or an employee can quit their job, for any reason unless the employment contract provides otherwise. The only exceptions involve terminations that violate a law, such as an anti-discrimination law, or public policy. An employer thus can fire or lay off an employee due to financial pressures caused by the COVID-19 outbreak. An employee cannot sue for wrongful termination on this basis. However, an employee can sue for discrimination or harassment that occurred during their employment, outside the context of their termination. The fact that the termination was legal does not shield the employer from liability for the earlier misconduct.
Discrimination and Harassment
Federal, state, and local laws protect employees in a wide range of situations. For example, Title VII of the Civil Rights Act is a federal law that prohibits discrimination based on protected traits such as race, color, national origin, gender, and religion. It applies to employers with at least 50 employees. Other federal laws include the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). State and local laws may provide broader protections. They may cover more protected traits than those covered by federal laws, and they also may apply to smaller employers. You can read more here about the various forms of employment discrimination and harassment.
Certain types of discrimination and harassment may increase during the COVID-19 outbreak. Some people mistakenly believe that Asian countries, especially China, are responsible for creating and spreading the virus. This has resulted in hate crimes against Asians and Asian-Americans, as well as adverse actions in some workplaces. Employers should be aware that they may be liable for discrimination or harassment against their Asian or Asian-American employees. They should be alert to signs of discrimination or harassment, while Asian and Asian-American employees should know that the law protects them.
Another form of misconduct in the workplace is retaliation. This generally involves an adverse action taken against an employee who reported discrimination or harassment, who brought a discrimination or harassment claim or charge, or who assisted someone in bringing a claim or charge. Federal, state, and local laws also prohibit retaliation. An employee may bring a retaliation claim in addition to a discrimination or harassment claim. The outcome of this claim does not depend on the outcome of the underlying discrimination or harassment claim. In other words, an employee may be able to prove retaliation even if they cannot prove discrimination or harassment. You can read more here about retaliation claims.
As discussed above, an employer can terminate or lay off employees due to the financial blow caused by the COVID-19 outbreak. In most cases, an employer also can fire an employee for refusing to come to work during the outbreak if the employer requires them to come to the office. However, an employer cannot fire an employee during the outbreak for a discriminatory or retaliatory reason. An employer also cannot fire an employee for refusing to come to work if a government directive, such as a shelter-in-place order, requires the employer’s office to shut down and employees to stay at home. Terminating an employee for refusing to participate in the employer’s violation of the law is illegal. This would support a wrongful termination claim. You can read more here about these claims.