This article is an extract from The Labour and Employment Disputes Review, 5th Edition. Click here for the full guide.

I Introduction

Early on in the pandemic, many employment lawyers predicted that disability accommodation relating to remote work would be at the forefront of covid-19-related litigation. This prediction came true, as plaintiffs raised disability discrimination claims stemming from an alleged failure to accommodate (including denial of remote work) in more lawsuits than any other covid-19-related claims. How does an employer know whether an employee can truly work in an effective manner from home given their job duties? Did allowing employees to work from home during the pandemic set a precedent for doing so after they could safely return to the workplace? These are questions that have led to litigation.

One set of issues that did not seem to be on the radar at the time were sex discrimination issues. The #MeToo movement was still impactful throughout business and world affairs, but many companies had responded with additional training on sex issues by the start of the pandemic. The Bostock2 decision extending Title VII protections to gay and transgender employees happened over the summer of 2020 – generating lots of talk and a flurry of policy updates – but most employers already had anti-harassment and anti-discrimination policies regarding gender identity and sexual orientation, whether properly categorised under the term 'sex' or not.

What very few saw coming were the ways that remote work, or the denial of it, could play a role in sexual harassment. Looking at a few current cases, it is clear that this type of this litigation should be anticipated. Employers should continue to take the actions they were taking pre-pandemic to curb sex harassment in the workplace with the caveat that the workplace includes a lot more now than its physical location.

Bostock did, however, intentionally punt on the question of religious accommodation and how that might relate to other employment or civil rights – just as Masterpiece Cakeshop did.3 The culture wars, as they are widely known, have not subsided. If anything, covid-19 has exacerbated them. The Supreme Court of the United States saw numerous petitions challenging executive orders banning 'in-person' religious practices, pitting public health against free exercise concerns.4 Along these lines, there has been a growing movement to narrow the definition of 'undue hardship' for religious accommodation requests. If this movement succeeds, employers will have the same high burden in religious accommodation cases as they have in disability accommodation cases. While not directly related to covid-19, this issue is worth watching.

Finally, there have been warnings about the ageing workforce in the United States for years. While the first two issues discussed can be connected to remote work, the issue of ageing workers during the time of covid-19 has come to light with regard to layoffs and failures to rehire (i.e., remaining or coming back to work). This is no surprise as, from the start of the pandemic, it was made clear that older individuals are at the highest risk of severe disease. The question, then, is can the US Centers for Disease Control and Prevention's guidance give an employer a reason other than age to take adverse actions. The answer, not surprisingly, is 'no', but it warrants repeating.

In this chapter, we explore some of the more paradigmatic cases regarding these issues over the past year and derive some takeaways for best practices in avoiding this litigation and addressing it when it occurs.

II Remote work: disability accommodations

i Disability discrimination claims and covid-19

Ogletree Deakins has been tracking covid-19 litigation filed since 12 March 2020 through the Ogletree Interactive COVID-19 Litigation Tracker.5 This tool not only tracks lawsuits by state and by industry but also by the specific legal claims made by the plaintiffs.

On 20 September 2021, the number-one claim was disability discrimination relating to a failure to accommodate, and this claim stems largely from a failure to accommodate remote work.

Moreover, many of the cases involve denials of remote work accommodations even when the state or locality had ordered businesses to allow employees to work from home, and so the cases often include other causes of action, such as wrongful discharge in violation of public policy. Further, many other cases involve failing to accommodate remote work once businesses were allowed to return workers to the worksite, despite the fact that the previous months had proven, allegedly, that the individual could effectively perform the essential functions of the job while working remotely. Hummel v. The Devereux Foundation, set out below, is a representative case concerning the former set of issues.6

The plaintiff suffers from chronic obstructive pulmonary disease (COPD), a lung condition that impacts her ability to breathe and makes her more susceptible to severe covid-19. The plaintiff was hired in 2019 by the defendant as an administrative assistant, which primarily included answering calls, scheduling appointments, returning calls, processing payments and processing prescriptions and refills. After the governor closed businesses due to covid-19, the defendant moved its location and asked the plaintiff if she would mind working in the new office with no one present. The plaintiff agreed. However, the plaintiff quickly noticed that staff and patients were still coming in. The plaintiff asked that she be allowed to work remotely due to her COPD. Others were allowed to work from home at this time. The plaintiff was allowed to work two to three days remotely a week, and was able to perform all her essential functions except for answering live calls. The plaintiff's supervisor then took away all but a single remote day due to this restriction, despite the plaintiff having confirmed with IT that they could set her phone up to do this. After some back and forth and the plaintiff's doctor submitting two different notes, the plaintiff first had her remote work reinstated, then rescinded altogether and, finally, was told she must go on unpaid medical leave. The plaintiff resigned, alleging she was constructively discharged.

Here, assuming the allegations in the complaint were true, there were a few areas where the employer could have taken action to avoid this lawsuit:

  1. The employer appeared to be following the governor's orders for some employees but not all employees.
  2. It is unclear whether 'answering calls in person' really is an essential function of the job, and, if it is, this must be justified. Based on the complaint, it appears the employer mistook 'convenient' for 'essential'.
  3. Even assuming in-person work is an essential function, there actually was an accommodation available as IT verified the ability to route live calls to home.
  4. The employer here appears to have engaged in some interactive process with the employee but not enough.
  5. The employer went back and forth between granting the accommodation and denying it.

The above issues are illustrative and can help devise ways to avoid, or be in a position to defend, failure to accommodate claims.

ii Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is a comprehensive civil rights law prohibiting discrimination on the basis of disability in employment, state and local government programmes, public accommodation, commercial facilities, transportation and telecommunications.7 Title I of the ADA prohibits discrimination in all employment practices – from application procedures, medical testing and reasonable accommodations, to workplace policies and procedures, benefits, discipline, harassment and termination.8 Title I applies to all state and local governments, as well as to private employers, employment agencies and labour unions with 15 or more employees working 20 or more calendar weeks in the current or preceding calendar year.9

The ADA provides that '[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual' in the terms, conditions and privileges of employment.10 Discrimination includes 'not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability', unless the employer can demonstrate that the accommodation would represent an 'undue hardship on the operation of the business' of the employer.11

Reasonable accommodations may include job restructuring, part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; adjustment or modification of examinations; and the provision of qualified readers or interpreters.12 Remote work as an accommodation falls under 'job restructuring', which at its core means reassignment of non-essential functions.13 While job restructuring may be a reasonable accommodation of a disability in appropriate circumstances, such an accommodation only applies to restructuring non-essential duties or the marginal functions of a job.14 To that end, remote work is contemplated as a viable accommodation under the ADA.15

All of this means that an employer must engage in a time-intensive review whenever any employee requests an accommodation. The ADA places immense pressure on the employer to move quickly and forces the employer to:

  1. engage both the employee and their doctor in the interactive process;
  2. consider the essential functions of the position (as compared to non-essential functions, as well as how the employee ordinarily goes about doing their job);
  3. consider possible ways the employee can perform their essential functions;
  4. consider which of those possibilities are reasonable; and
  5. consider what kind of hardship the employer will suffer by providing the accommodations.

It is a lot to consider in a short period, only to have lawyers, the Equal Employment Opportunity Commission (EEOC), state fair employment agencies, courts and others question and critique each step of the dialogue and analysis. This after-the-fact reflection is all being done under, arguably, something akin to a strict liability standard. Specifically, to establish a failure to accommodate claim, the employee must prove that: (1) the employee had a disability within the meaning of the statute; (2) the employer had notice of the disability; (3) the employee could perform the essential functions of their job with a reasonable accommodation; and (4) the employer refused to make such an accommodation. Thus, an employer that waits to act, without a full understanding of the ADA and how it works, is at a distinct disadvantage in terms of ADA compliance and faces enhanced legal risk.

iii Remote work and covid-19

Nothing in particular about covid-19 changes the fundamentals of reasonable accommodation analysis under the ADA. An employer must still go through the interactive process and reasonably accommodate a qualified individual with a disability unless it would create an undue hardship, eliminate an essential function or create a direct threat.

However, one consideration has come about due to the consequences of covid-19. Virtually every locale in the nation had a stay-at-home order that required businesses to allow most employees to work from home. Usually this language was something between 'whenever possible/plausible' to 'must'. As a result, given the orders and programmes such as the Paycheck Protection Program (incentivising employers to keep workers on the payroll as much as possible), many people began to work remotely, including individuals with disabilities whose previous requests for remote work had been denied in the past. This created a conundrum for employers when the time came to return to the worksite, as they had to consider whether they would have to say 'yes' to an employee's request to work remotely as a reasonable accommodation simply because they were 'following orders' to allow that same employee to work from home during the height of the pandemic.

The guidance given by the EEOC at the time16 was that, if an employer eliminated some of its employees' essential functions to allow them to work from home and remain on the payroll, when one of these employees then asks to work from home as a reasonable accommodation when it is time to go back to the worksite, the employer should go through the interactive process again. The fact that the employee worked from home during the pandemic is not evidence that the employee can perform the essential functions of the job while working at home. However, if the employee was, in fact, performing the essential functions of the job at home (and the remote work does not cause an undue hardship), then the fact that they worked from home during the pandemic can be used as evidence that they can work remotely and still perform the essential functions of the job.

This does not mean that they must be allowed to work from home; an employee is not entitled to the accommodation they want, but they are entitled to a reasonable accommodation, and this can be of the employer's choosing.

Nevertheless, the EEOC's stance on this issue makes it even more important that employers document and track essential job functions.

iv Best practices

Some disability accommodation best practices include the following:

  1. document everything;
  2. have an accommodation policy and adhere to it;
  3. make sure everyone is trained on the above-mentioned policy;
  4. know what the essential functions are for every job and do not mistake 'convenient' for 'essential';
  5. if the aim in the interactive process is to find a reasonable accommodation for an employee, employers will almost always succeed and have fewer complaints; and
  6. consider that there may be nested accommodations (i.e., accommodations that must be carried forward into the remote environment).

III Remote work: gender harassment

Remote work as it relates to gender harassment and discrimination can cause problems for an employer in a number of ways. Consider the following complaints filed in 2021.

  1. Pagan v. Liberty Risk Management, Inc, et al: among a long list of sexually harassing incidents, the plaintiff alleges that the owner refused her requests for remote work during the pandemic so he could be alone with her in the office.17
  2. Cohen v. Retrofete, Inc et al: the plaintiff alleges that her co-worker's misogynistic outbursts occurred in Zoom meetings in front of everyone and that he came back from remote work early to take over her job duties.18
  3. Delair v. CSU, San Bernardino et al: the plaintiff alleges that her co-worker sent her numerous text messages likening his genitals to his 'corona' and inviting her to look. The plaintiff also alleges that her co-worker tried to give her covid-19 by hugging her at work.19
  4. Garrett v. Serenity Health and Wellness Center, LLC: among a long list of harassing incidents, the plaintiff alleges that she was sent numerous kiss emojis.20

All the above cases include some form of social media or online harassment. Cohen also involves a co-worker using the fact that the plaintiff was working remotely to take her job duties and begin managing her team. In Pagan, the plaintiff alleges that her harasser denied her numerous requests to work from home during stay-at-home orders specifically to be alone with her.

i Social media: a tool for harassment and bullying

Sexual harassment claims premised on content discovered on the internet and via mobile phones was a big problem prior to the pandemic. An employee's social media posts concerning their proclivities (relationship status, interest in partying, private experiences, fantasies) can create risk for employers, particularly when those posts are available to co-workers. And it is not just the posts themselves that matter; it is what others might do after finding those posts. For example, an employee might post a compromising photo on their Facebook page. Then, another employee might see that photo and copy it from the internet and attach it to an email. That email could then make its way through the employee's place of business and itself become the basis of a sexual harassment claim. The potential for this was always there, but it has undoubtedly increased with so many employees working from home.

Now, more than ever, the line between work and personal life is blurred. With 24/7 connectivity, employees do not need to wait to be in close physical proximity to engage in behaviour that may elicit claims of sexual or gender harassment. And, with a computer or phone screen as a shield, what is said may be even more aggressive or explicit than what the harasser would risk saying in person. If these texts, emails or videos are preserved by the victim, they will serve as almost insurmountable evidence of the severity or pervasiveness of the alleged harassment. Online harassment or 'sexting' may include derogatory terms, sexual language and propositions, nude or pornographic images, revenge porn or even threats of violence. This may occur on Facebook and other social media sites, or in chat rooms, texts, voicemail, videos, photos and, of course, Zoom or Teams.

Employers must understand that behaviour outside work hours or away from the workplace can still impact the employment relationship, just as harassment by a manager at a meeting is no less serious than what is done in a more inconspicuous setting. If a manager or coworker is engaging in harassment or bullying, employers have an obligation to investigate reported incidents, stop the conduct and take appropriate remedial action.

Employers should consider the following risks.

  1. Employees may feel emboldened to pursue unwanted relationships with co-workers who use apps such as Tinder and Happn.
  2. Co-workers may make inappropriate comments regarding profile pictures or romantic interests.
  3. On Zoom, it is possible to see into a co-worker's home, sometimes their bedroom. What is considered professional becomes less clear.
  4. Supervisors or managers may feel tempted to comment on someone's appearance in a Zoom call.
  5. If a 'like' is not reciprocated, this may lead to retaliation or animosity.
  6. Due to the nature of apps and being constantly connected, the frequency of interactions, such as those listed above, rises exponentially.
  7. Employer may be subject to liability for harassment, discrimination and negligent supervision when employees act inappropriately.

In short, even before the pandemic, the speed of electronic communication and people's relative lack of filters (and common sense) when using social networking sites facilitated the spread of private information that could lead to a claim. In addition, a co-worker no longer has to call someone to ask for a date but can simply send a message using a smartphone. In a situation like that, the co-worker may not be able to tell from the response to the date request whether the other employee was uninterested or simply playing hard to get. This could lead to another text being sent, and perhaps another. The company may end up being hit with a sexual harassment lawsuit and that co-worker or subordinate will have pages of text messages and other compelling evidence. All of this is exacerbated by the semi-permanent remote work culture that has become commonplace.

Overall, even if employees post harassing or derogatory information about co-workers away from the workplace, an employer may be liable for a hostile work environment if it was aware of the postings, or if the harassing employee was using employer-owned devices or accounts. The issue is further complicated as more employers use a 'bring your own device' policy, in which they require or expect employees to use personal laptops, smartphones or other technology while on the job or working remotely.

ii Best practices

The danger for online gender and sex harassment increased during the pandemic and is likely to continue. In addition, using the ability to work remotely as a tool to continue to harass or discriminate against someone is also on the rise.

Employers should consider:

  1. ensuring that anti-discrimination and anti-harassment policies clearly state that harassment, discriminatory and unprofessional conduct of any kind will not be tolerated;
  2. ensuring that electronic media and internet usage policies specifically state that it is a violation of company policy to use the internet or social media to sexually harass or discriminate against employees;
  3. reinforcing and referencing the above-mentioned policies during employee sexual harassment and discrimination training; and
  4. training managers and HR personnel to look out for unfair denials of remote work to subordinates that would leave that subordinate alone in the office with a manager or supervisor, and for co-workers attempting to take over job duties of other employees who are working remotely.

An employer revising its policies could sample social media policies from other companies. A useful compilation of the social media policies of dozens of companies can be found here: http://socialmediagovernance.com/policies.php.

IV Religious accommodation

Religious accommodation claims will rise sharply as there is now a federal mandate that private employers with more than 100 employees must have mandatory vaccination or weekly testing.

From the outset, employers should consider this quote from the 1977 Supreme Court case of Hardison, which established the undue hardship standard for Title VII religious accommodation '[t]o require [defendant] to bear more than a de minimis cost in order to give [plaintiff] Saturdays off is an undue hardship'.21

The following quote, from a dissent by Justice Gorsuch in February 2021 discussing the Hardison case, is also relevant: 'The only mistake here is of the Court's own making—and it is past time for the Court to correct it.'22

In Small v. Memphis Light, Gas & Water, the plaintiff alleged that the defendant's denial of his proposed religious accommodation, a schedule adjustment, was a violation of Title VII. The defendant argued that the plaintiff's request was an undue burden. Relying on Hardison and the long line of cases after it, the lower court granted a summary judgment to the defendant and the appeals court affirmed it. The plaintiff petitioned for certiorari, wanting the Supreme Court to overturn Hardison, but his petition was denied. No explanation was given for why it was denied, but Justices Gorsuch and Alito made their position clear.23 Specifically, they would likely vote to overturn Hardison and narrow the undue hardship exception under Title VII for religious accommodation to the same burden as the undue hardship exception for the ADA. And, most likely, Justices Thomas, Kavanaugh and Barrett would follow suit. This denial of certiorari does not alter the entrenched notions that the duty to accommodate employees' religious beliefs is not absolute. Rather, it is a warning that if the issue is heard, it will likely be overturned.

If Hardison is overturned, religious accommodation requests would likely be analysed much more like disability accommodation requests, as described in Section II. Employers should monitor this.

For now, '[r]eligion does not exist in a vacuum in the workplace', but 'coexists, both with intensely secular arrangements such as collective bargaining agreements and with the intensely secular pressures of the marketplace'.24 In recognition of this balance, Title VII does 'not impose a duty on the employer to accommodate at all costs'.25

To require an employer to bear more than a de minimis cost is an undue hardship.26 Any cost in terms of efficiency or wage expenditure is more than de minimis.27 Likewise, any loss in production that results from a worker being unavailable due to a religious conflict can amount to an undue hardship,28 and an accommodation that places an imposition on other employees can be more than a de minimis burden.29

While the EEOC has aggressively sought to expand the law regarding religious accommodation in recent years, it continues to acknowledge that an employer may establish an accommodation:

not only [by pointing to] direct monetary costs but also the burden on the conduct of the employer's business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered.30

An employer is also not required to accommodate an employee in 'exactly the way the employee would like to be accommodated'.31 And accommodations need not be perfect to comply with Title VII.32

Thus, for now employers have broad discretion in denying or granting religious accommodations. If the law is changed by the Supreme Court, all of that will be different. Employers should be conscious of this and be prepared to convert their religious accommodation policies accordingly.

V Conclusion

While the covid-19 pandemic has had a wide-reaching impact, it has not changed the basics for avoiding discrimination and harassment litigation. The following points should be considered by all employers in the context of labour and employment disputes.

  1. Do not treat employees differently based on protected classes.
  2. Have a policy and adhere to it.
  3. Document everything.
  4. Listen to employees' complaints fully; if they do not feel they have been heard, they may walk away from the conversation.
  5. Accommodation claims, of all types, are fact-intensive. Be wary of 'easy decisions'.
  6. Harassment is still a big issue. Be mindful of online and remote harassment and for supervisors denying remote work to be alone with a co-worker.
  7. In the age of remote work, the risks to employers may be greater than ever.