EEOC Updates COVID-19 Guidance to Cover Retaliation

On November 17, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance. The latest update provides school officials with information on preventing retaliation in pan­demic-related employment situations in violation of federal equal employment opportunity (EEO) laws. The EEOC guidance is available at:

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

The EEOC guidance highlights that, although employees have the right to engage in protected activ­ity without fear of retaliation, schools still have the right to enforce nondiscriminatory, nonretaliatory workplace rules – including COVID-19 health and safety protocols.

School employees and job applicants are protected from retaliation for engaging in protected activities un­der the EEO laws, which include the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. Protected activity can take many forms, including:

  • filing a discrimination charge,
  • complaining to a supervisor about coworker harassment,
  • requesting an accommodation related to a disability or sincerely held religious belief (regardless of whether the request is granted),
  • witnessing discrimination and seeking to assist affected workers, or
  • reporting EEO violations to a supervisor or participating in a school harassment or discrimination investigation.

Importantly, employees are protected from retaliation only if they engage in the protected activity on a “reasonable good faith belief that something in the workplace may violate” antidiscrimination laws and the employee expresses those beliefs “in a reasonable manner.”

Schools cannot retaliate against an employee who engages in a protected activity. Retaliation includes any adverse employer action in response to protected EEO activity that could deter a reasonable person from en­gaging in such activity. Retaliatory action may include:

  • refusal to hire,
  • suspension or dismissal,
  • denial of a promotion,
  • work-related threats or warnings,
  • negative or lowered evaluations, or
  • transfer to less desirable work or work location.

The EEOC guidance clarifies that retaliation most likely will not include “a petty slight, minor annoyance, or a trivial punishment.”

Notably, an employee who engages in a protected activity is not shielded from all discipline, only from re­taliatory discipline related to their protected activity. A school may still discipline the employee for other legit­imate reasons, such as attendance, performance issues, or noncompliance with COVID-19 health and safety protocols. The test is whether the school would take the same action regardless of the employee’s protected ac­tivity. If it would, then the school may enforce its COVID-19 health and safety protocols and other work rules even after an employee’s protected activity.

If you have questions about the application of school rules to an employee who has engaged in pro­tected activity, contact a Thrun labor attorney to help you navigate the process.