Even during a worldwide pandemic, an employer’s legal requirements and obligations under anti-discrimination, harassment, and retaliation statutes remain in full effect.  Even though this may not be at the top of a business’ list, and given the phased reopening of the economy, employers should take the time to audit their internal policies and processes to ensure compliance with the law.  This article provides a brief overview (and review) of discrimination, harassment and retaliation laws in the workplace.

Discrimination

Anti-Discrimination Law 101: The Legal Basics

The most relevant anti-discrimination federal and state include:

• Title VII of the Civil Rights Act of 1964
• The Age Discrimination in Employment Act (ADEA)
• The California Fair Employment and Housing Act (FEHA)
• The California Fair Pay Act

But what exactly do these laws prohibit?  Under these statutes, it is unlawful to discriminate against individuals belonging to a certain protected class with respect to any term, condition, or privilege of employment – including hiring, firing, promotion, job assignments, etc.  “Protected classes” can include: age, marital status, mental or physical disability, race and color, religion, sex/gender and national origin.

California law is more expansive than federal law, as it prohibits discrimination on the basis of “perception” or “association.”  In other words, even if an employee is not actually a member of the protected class, but is perceived as being a member of or associated with one or more of these protected classes, employers must not engage in discriminatory actions.

Note that, even if a business’ action or decision may be neutral on their face, they may still violate anti-discrimination laws if they have a disparate impact upon execution.  Thus, employers should pay close attention to not only its policies and practices as written, but also in practice.

Remember: As a California employer, you are obligated to take all reasonable steps to not only prevent discrimination from occurring in the workplace, but also to promptly correct any discriminatory conduct.

COVID-19 Implications

Having a basic understanding of discrimination laws, how might this relate to COVID-19 in the workplace?

Discrimination may come up in three main situations: rehiring practices, leaves of absence, and testing in the workplace.

Rehiring: Be Objective

With respect to rehiring, it is pivotal that employers develop and use an objective, non-discriminatory and legitimate rehiring plan or criteria.  The “basis” or “bases” in which the employer will be deciding which employees to rehire may have severe implications and run afoul of anti-discrimination laws.

For example, the Center for Disease Control may deem employees who are 65 years or older as Higher Risk.  Yet, this should not -in and of itself- automatically disqualify those older employees from being considered for rehiring.  That would be a clear example of age discrimination. Likewise, an individual’s race or national origin (e.g., Asian or Asian American) should have no bearing in an employer’s rehiring decisions.

Leaves of Absence: Be Consistent

Given the pandemic, it is inevitable that many employees will submit requests for leave either under the Families First Coronavirus Response Act (FFCRA) or other state or local paid sick leave laws.  It is imperative that employers administer and handle all requests in a non-discriminatory manner.  Regardless of whether the requests are granted or denied, employers must be consistent.  An employee’s race, gender, age or any other protected category should have no bearing in a company’s decision of either granting or denying the request.

Testing in the Workplace: Do Not Single Out Employees

As testing methods for COVID-19 become more readily available and a more common practice in the workplace, thread with caution.  Ensure that certain employees (e.g., older or disabled employees) are not being singled out.  Do not require such employees to undergo additional testing or other safety precautions, which are not required of other employees.

Harassment

Harassment Law 101: The Legal Basics

Turning to harassment, both Title VII of the Civil Rights Act and the FEHA prohibit employers from harassing workers on the basis of certain protected traits.  Note that harassment is not just sexual harassment, but can also be harassment on the basis of race, religion, national origin, or medical condition among others.  Harassment. Involves conduct that is so frequent or severe that it creates a hostile or offensive work environment.

Consequently, harassment can take a number of different forms including:

• Unwanted sexual advances.
• Denigrating jokes.
• Insulting comments.
• Any other hostile at that may interfere with the performance of the employee’s job duties.

Under California law, an employer is liable for co-worker harassment if the employer knew –or should have known–about the harassing conduct and failed to take immediate and appropriate action.  Moreover, employers are liable for harassment committed by supervisors regardless of whether the employer knew or should have known of the conduct (this is known as strict liability).

Remember: As a California employer, you have an affirmative duty to take reasonable steps necessary to prevent and to promptly correct harassing conduct in the workplace.

COVID-19 Implications: Bullying and Inappropriate Jokes

COVID-19 may provide fertile ground for bullying or inappropriate jokes in the workplace, as there may exist a social stigma against Asian or Asian-American employees.  It is possible that co-workers may refer (even if jokingly, consciously or unconsciously) to coronavirus as the “Chinese Virus” or the “Kung Flu.”  This could very well constitute unlawful harassment.  Or perhaps, employees or supervisors may harass Asian or Asian-American employees by telling them that they should not come to work because they are the “virus carriers.”

So, what should employers do to avoid these situations?

Employers should use this time to revisit the company’s anti-harassment policies, as well as to ensure that effective complaint mechanisms (for reporting harassment or other issues in the workplace) are well-established.

While anti-harassment training may not be at the top of an employer’s to-do list, it may be worth considering providing a refresher training course for managers and employees.  Remember that California employers with 50 or more employees must train supervisors and employees every 2 years).

Taking these obligations and recommendations seriously will prevent unlawful conduct from occurring, help your company avoid or decrease liability and make the workplace a comfortable environment for everyone.

Retaliation

Retaliation Law 101: The Legal Basics

Both federal and state laws protect employees and applicants from employer retaliation.  At its core, retaliation involves an adverse action taken against an employee who is engaging in a protected activity such as:

• Opposing a practice that is unlawful under the law;
• Filing a charge or participating in any manner in any investigation or proceeding under an anti-discrimination statute;
• Participating in activities to further the enforcement of employment discrimination laws;
• Disclosing information to a government or law enforcement agency that the employee believes is a violation of state or federal statute. See Labor Code sections 98.6 and 1102.5.

COVID-19 Implications

The interplay between retaliation and COVID-19 could manifest in situations where the employee raises a good-faith complaint regarding the workplace, files a complaint with a law or health enforcement agency, and when an employee requests a leave of absence.

Employee Complaints: Reporting In and Out

On the one hand, it is possible that an employee may raise an internal complaint with the company in relation to personal protective equipment (PPE) or other similar safety issues. Indeed, it is plausible that an employee may complaint because the company is not providing sufficient PPE or because whatever PPE is being provided is simply ineffective.   Likewise, the employee may raise concerns with how the employer is handling sanitization and disinfecting protocols in the workplace.  Alternatively, the employee may “blow the whistle” and report out an employer for failing to implement county or city health department directives for addressing COVID-19 concerns in the workplace.  Regardless of who the complaint is being made to, employers must refrain from retaliating against the employee.  Instead, take these complaints seriously and work with the employee or agency in addressing the underlying issues.

Leaves of Absence: Watch for Anti-Retaliation Provisions

As previously discussed, employees will continue to request leave of absence for COVID-19 related reasons.   Therefore, employers must be aware that leave of absence laws contain their own anti-retaliation provisions.  Indeed, the FFCRA, traditional FMLA, and California paid sick leave all explicitly prohibit an employer from retaliating against an employee for exercising their right under these leave laws.  Protected leave equals retaliation outlawed.

Employers need not only adapt to the “new normal,” but must continue to comply with traditional, pre-existing legal norms.  This article described some of the most salient issues that employers will be faced in the foreseeable future.  As always, employers should consult with legal counsel in handling their business-specific circumstances.