Discrimination Considerations Following COVID-19 Reopening

Discrimination Considerations Following COVID-19 Reopening

Last week, Syntrio published an update that outlined several employment law related challenges associated with reopening business in the wake of the COVID-19 shutdown that has stymied the economy for the better part of the last two months. Although we briefly touched on discrimination as a consideration your decision-makers must be mindful of, the issue is certainly ripe for further discussion. This article will address in more depth the equal employment opportunity (“EEO”) issues you must consider when determining which employees to bring back after furlough or layoff and which employees may present challenges should the need arise to have another reduction in workforce in the immediate future.

According to the United States Department of Labor,  more than 36 million Americans have filed for unemployment benefits in the last two months. This figure tells us what we already knew: businesses have had to dramatically cut back on staffing due to COVID-19 related closures and economic difficulty. Now that more states are easing stay-at-home restrictions, some businesses are assessing their staff and determining that the time is right to bring back a number of employees who were let go since March. With that re-opening comes the need to review the criteria employers are using to re-hire or bring back employees who have been out of work due to the pandemic to prevent the potential for claims of discriminatory hiring practices.

Given the current economic circumstances, it is reasonable to assume that not all businesses will be able to immediately resume operations at the same level of staff they had prior to the outbreak. If they could, it would be relatively easy to avoid claims of discrimination by simply returning everyone laid off or furloughed to the positions they held when business ceased or reduced. In the likely event you cannot bring back everyone, you must be very careful to rely on objective criteria for bringing back employees so as to avoid claims of discrimination.

Analysis of a Discrimination Claim

The most common form of employment discrimination is known as “disparate treatment” discrimination. Simply stated, this means that an employee claims another employee is being treated more favorably than they are due to membership in a protected class. Protected classes include such categories as race, color, gender, national origin, sex, religion, or others. To prove disparate treatment discrimination, an employee must first show that (a) he or she was a member of a protected class; (b) the employer knew of his or her membership in that class; (c) acts of harm occurred; and (d) others who are similarly situated were either treated more favorably or not subjected to the same or similar adverse treatment.

It is important to mention that in a discrimination case the employer will always have the opportunity to provide a legitimate, non-discriminatory reason for its actions. Assuming the employer can do so, the analysis will shift back to the employee to prove the legitimate reason was actually a pretext (justification but not the real reason) for the allegedly discriminatory conduct.

Discrimination Following COVID-19 Reopening

The last two months have taken a toll on employees and employers alike. As we begin to re-open the workforce there will undoubtedly be some employees who are unable to get their job back. When these employees find out they will not be able to return to work, they may be angry with the employer and look for reasons they were not re-hired beyond the economic realities of the situation. These reasons can (and often do) include fears that a failure to re-hire was a  discriminatory action. Therefore, it is important for employers to use legitimate, non-discriminatory reasons for selecting employees who return to work.

Performance-based Decisions as the Basis for Discrimination

The most common criteria that are objective and non-discriminatory include seniority, documented performance, and positional need. It is critical that your business maintain thorough records of all discipline and other issues so as to avoid any argument that sudden “performance issues” are actually pretext for discrimination based on a protected class. For example, an employee I knew well had a surgery and was off work for a number of weeks. Shortly after returning he notified the employer that his wife was pregnant with their first child and would be taking a brief period of leave after birth. Suddenly a flood of emails came in regarding his performance. He was ultimately terminated. Suffice it to say a discrimination suit followed shortly thereafter.

If performance is the non-discriminatory reason for choosing one employee over another, you must be certain that the issues leading to that determination are well-documented in the past through legitimate sources such as the personnel file and other means. Also critical to ensuring objectivity and non-discriminatory reasoning in re-opening your business is documenting the decision-making process. Write out the reasoning for your decisions, and keep those reasons documented and available if necessary.

Seniority as the Basis for Age Discrimination

On its face, seniority is an easy and non-discriminatory basis for returning your employees to work. Generally speaking, this approach is reasonable and offers a quality rebuttal in the event your employee argues that he or she was subject to employment discrimination. That said, the approach is not infallible by any means. For example, there could be perfectly legitimate reasons your business may need to bring back junior employees over those in senior positions. Take for example the retail store who employed a high number of shift managers, but now can only have five people in the store at any given time. It may make business sense to hire a second cashier in lieu of a more expensive manager, but the more senior (and possibly older) employee could argue that bringing back more junior employees was a pretext for age discrimination.

Again, it is important to document the decision-making process and being neutral in your employment decision making. Moreover, if one non-discriminatory process was used during the layoff period, the same process should be used to bring back employees now that there is the opportunity to re-open your business.

Finally, you must be aware of how your decisions may be perceived by those employees chosen for re-hire. Taking the seniority example earlier, if seniority was the process chosen for layoff, it would be reasonable to use that criteria in bringing back employees, even if that means offering them positions that are needed right now, rather than commensurate with what they were doing when they were selected for layoff.

COVID-19 Risk Should Not be a Factor

Your business should pay careful attention to risky considerations when re-hiring employees. For example, you may be concerned that older employees, women who are or may become pregnant, or those with pre-existing health conditions may be at greater risk of contracting COVID-19 if they return to work. This type of thinking is an easy trap that can lead to a discrimination claim. While you may well have the best interests of your employees at heart, each of the listed examples would be considered making an employment decision based on a protected class (age, sex, or disability). Please let that be a reminder to be objective and neutral in your employment decisions and not to factor in COVID-19 risk into your decisions. 

We are emerging from a time of great unknown into a time of continued uncertainty. With the hope an economic re-opening also brings a heightened number of concerns for your business. We encourage you to conduct discrimination training for your managers and decision-makers; we are available at any time to discuss this option as you take steps to re-open your business. Contact Syntrio today to discuss options for training your managers on the prevention of discrimination in the workplace.

Since 2007, Jonathan has practiced labor and employment law, with a focus on litigation, individual plaintiff and class action discrimination, harassment, and other employment-specific cases as well as focusing his practice toward advising employers on preventive practice. Jonathan has presented over 100 live employment discrimination and harassment prevention training courses across all 50 states.

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