Discrimination or Retaliation

The EEOC updated its Q&As on COVID-19 and the pandemic in light of the ADA and Rehabilitation Act. The highlights are as follows:

  • Employers may:
    • Require accurate and reliable COVID-19 tests in order to decide who may return to work when employees will be physically entering the workplace.
    • Ask employees who will be physically

In late July, a group of fourteen grocery store workers sued a supermarket chain, alleging that it discriminated against employees when it banned the wearing of Black Lives Matter or BLM masks at work. The lawsuit alleges that the company disciplined, and in one case, terminated, employees for wearing masks supporting the racial justice and

The National Labor Relations Board (NLRB) just made it easier to address employee outbursts involving offensive or abusive statements–including outbursts involving profane, racist, and sexually inappropriate remarks.

In General Motors LLC, 369 NLRB No. 127, a decision issued July 21, 2020, the NLRB modified the long-used Wright Line test for deciding whether protected concerted

Governor DeWine signed an executive order on June 16, 2020 that provides exceptions to the general rule that employees may not refuse to return to the workplace following a COVID-19 pandemic layoff or work-at-home situation. Employees with “good cause” may remain at home and refuse to work and still receive unemployment benefits. Good cause includes:

EEOC charge data graph

The chart above illustrates charge filing data for fiscal year 2019. Retaliation charges continue to dominate EEOC charge filings. Following closely behind are disability, sex, and race discrimination charges. This should continue to serve as a reminder not to turn an otherwise meritless charge or complaint of discrimination into a good retaliation claim or charge

In a decision on June 15th, the U.S. Supreme Court held 6-3 that the protections for “sex discrimination” include discrimination based on sexual orientation and gender identity. In three combined cases, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects against sexual orientation and gender identity because it is

Undoubtedly, you received numerous communications from businesses by now about their responses or stances on the George Floyd issue, protests, and recent discussions about systemic racism. Should your business send one out to customers or vendors? What about employees? What should it say?

It is a business-specific decision about whether to send out a communication

The Equal Employment Opportunity Commission (EEOC) announced that it will delay the anticipated opening of the 2019 EEO-1 Component 1 (aka EEO-1 report) data collection and the 2020 EEO-3 and EEO-5 data collections due to the COVID-19 pandemic.

The EEO surveys collect data from employers on diversity statistics. The EEOC said that employers can delay

As employers transition to return to work and return to in-office work, there will be employees who will be fearful of a return to work due to the risk of contracting COVID-19 in the workplace. How do employers handle those requests?

The employee fears contracting COVID-19 but has no underlying special risk factors

For those

According to the EEOC’s updated guidance, during the course of the coronavirus/COVID-19 pandemic, employers may use the “direct threat” exception to conduct medical tests of employees entering the workplace.

Ordinarily, an invasive antibody test or infection test for COVID-19 would be an impermissible medical examination under the Americans with Disabilities Act (ADA). However, this medical