Reopening the Economy: Employers Face Tough Decisions and Potential EEO Claims

June 4, 2020

Shay Dvoretzky and Elizabeth B. McRee, Jones DayMany states are lifting stay-at-home restrictions.  Employers face tough calls about whether and when to re-open; which employees to bring back; and how to respond to employees’ requests for flexible schedules or other accommodations. 

As employers wrestle with these business decisions, they are already beginning to face litigation.  We identify three areas under anti-discrimination laws that pose significant litigation risk.

            Protections for Individuals with Disabilities: The EEOC has issued updated technical guidance on the Americans with Disabilities Act (“ADA”), intended to address many issues employers will face as they grapple with returning employees to work safely.  But the guidance still leaves many questions open, forcing employers to make judgment calls that may later result in litigation. 

Indeed, the head of the EEOC’s New York office reported last week that failure-to-accommodate claims were the most common type of COVID-related claims filed with the office so far—presaging a coming wave of litigation, and not only from employees, as customers have been among the first to bring ADA suits.

Say an employee has an underlying health condition (like diabetes, obesity, or liver disease) that the CDC says creates a “higher risk for severe illness” if the employee contracts COVID-19.  May the employer bar that person from returning to work?

The EEOC says yes—but only if the ADA’s interactive process establishes that the employee’s disability poses a significant risk of substantial harm to the employee’s health that reasonable accommodations cannot reduce or eliminate.  Under EEOC guidance, relevant factors for the employer to consider—any of which could spark litigation—include the severity of the pandemic in the area, the employee’s personal health (e.g., whether the employee’s disability is well-controlled), the employee’s job duties, the likelihood of exposure to the virus at the workplace, and steps the employer is taking to protect all workers (like mandatory social distancing).  The employer must also consider accommodations like telework, leave, or reassignment to enable the employee to return to work safely. 

In the no-good-deed-goes-unpunished category, retailers who require customers to wear face masks, in part to protect their employees, have faced ADA suits from customers alleging that respiratory illnesses prevent them from wearing masks (here and here).

            Age Discrimination: CDC guidance says that those 65 and older face greater risk of severe illness if they contract COVID-19.  Measures intended to protect this at-risk group could invite claims under the Age Discrimination in Employment Act (“ADEA”).  Should employers stage older employees for later return?  Can employers bar older workers who want to come back to work from doing so?  On the flip side, must employers favor requests of older employees for accommodation, leave, and telework over similar requests from younger employees? 

Typically, the law prohibits employment decisions based on age.  Employers need to carefully consider whether well-intended attempts to protect older employees could backfire as evidence of discrimination.  Likewise, employers seeking to reduce their workforce for COVID-related economic reasons should take care to not target older workers for layoffs.  At least one older employee  has already claimed his employer used COVID as a pretext for age discrimination. 

            Discrimination Based on Gender or Familial Status: Even as workplaces re-open, schools and childcare facilities may remain closed.  How should employers accommodate employees who are returning to work but have no childcare? 

In one of the first COVID-related lawsuits over returning to work, the plaintiff is a single mother who juggled work with childcare responsibilities during the pandemic.  She alleges that her employer violated the recently passed Families First Coronavirus Response Act by failing to give her a more flexible work schedule in light of her childcare responsibilities.  Another plaintiff claimed she was wrongfully fired after she requested paid leave under the Families First Coronavirus Response Act in order to take care of her minor children. 

Some jurisdictions, including New York state and the District of Columbia, also recognize parental or family responsibility status as a protected category.  Likewise, Title VII of the Civil Rights Act prohibits employment decisions grounded in stereotypes about women as caregivers—including the stereotype that mothers will inevitably neglect their jobs in favor of childcare responsibilities.  E.g., Chadwick v. WellPoint, Inc., 561 F.3d 38 (1st Cir. 2009).

Employees have thus brought stereotyping claims if they received negative evaluations or scrutiny after supervisors learned of their childcare obligations.  See Walton v. Best Buy Co., Inc., 2010 WL 3270120 (E.D. Mich. 2010); Towers v. State Univ. of N.Y. at Stony Brook, 2007 WL 1470152 (E.D. N.Y. 2007).  As videoconferences from home open a window into employees’ personal lives, employers should be mindful of the potential for such claims.

Shay Dvoretzky and Elizabeth B. McRee are partners at Jones Day. The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect views or opinions of anyone else.