Discrimination may still exist in the workplace during this time of the COVID-19 pandemic.
As we all know, life is very different than it was a month ago. How we work, how we shop and how we interact with others has changed for most of us. Although there are days when all of us have wanted to stay home in the past, when someone tells us that it is a requirement, it does not feel the same.
In the workplace, employers must remember that discrimination may still exist there. Employers are responsible for providing environments that are free from discrimination and harassment. So, in addition to contending with all of the new issues that exist for employers, you must remember to still pay attention to other issues that may be occurring.
Janet Dhillon, EEOC’s Chair, recently put out a statement reminding employers that race and/or national origin discrimination is illegal. She cautioned employers to be mindful of these two types of discrimination, particularly toward employees of Asian descent. She went on to say that charges filed on these two bases have risen since the pandemic began.
Harassment based on race and/or national origin may be from supervisors, co-workers, customers and/or vendors. Although employers do not have direct control over vendors, they can report their conduct to their employer. If customers harass an employee, the company can decide not to continue the relationship with them. Employers do have direct control over their supervisors and employees, and must be vigilant to watch for signs that harassment may be occurring.
I would be remiss if I did not mention the Americans with Disabilities Act (ADA) in this article. Employers must remember that the ADA applies during this pandemic. Reasonable accommodations must be provided to disabled employees. Employers need to engage the employee in the interactive accommodation process, but it may be more streamlined. Employers should act in good faith, and may want to provide temporary accommodations that can be revisited after the crisis. When it comes to reasonable accommodations, employers may want to be flexible and use a common sense approach. And, if an employee is being provided with a reasonable accommodation at work, like a screen reader, and is now being allowed to telework, that employee should be given access to the screen reader.
Both the ADA and the Genetic Information Non-discrimination Act, GINA, have confidentiality provisions. Information about whether an employee has tested positive may be covered under the ADA provisions, or information about a family member may be covered under GINA. Rather than asking employees if they have been exposed to any family members with the coronavirus, employers might ask if the employee knows if they have been exposed to anyone who has tested positive for the virus.
EEOC, along with the Department of Labor, has issued quite a lot of guidance in the last few weeks regarding the pandemic and how it affects employers. Many law firms are offering free webinars about changes to laws that are occurring. I encourage you to take advantage of these resources. EEOC has updated its policy guidance on pandemics. Please use these resources to aid your businesses. Last week, EEOC solicited questions related to the ADA and the pandemic. They received about 500 questions. They pre-recorded a webinar which is now posted on EEOC’s website.
If you have questions about the ADA, GINA and race and/or national origin discrimination, feel free to contact me at firstname.lastname@example.org or (502) 553-7648. I wish you the best in these trying times.