The EEOC has recently updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to include a section on Retaliation and Interference.

The update to EEOC’s guidance reviews anti-retaliation protections under the federal equal employment opportunity (EEO) laws including Title VII of the Civil Rights Act (Title VII) and Title I of the Americans with Disabilities Act (ADA). The updated guidance provides some reminders for employers in the COVID-19 context:

  1. Current employees (including full-time, part-time, probationary, seasonal, and temporary), job applicants, and former employees are protected by the anti-retaliation provisions of the EEO laws. In addition, anti-retaliation protections apply regardless of an applicant’s or employee’s citizenship or work authorization status.
  2. Retaliation includes an employer’s action in response to an activity protected under the EEO laws that could deter a reasonable person from engaging in protected activity. However, usually, retaliation “would not include a petty slight, minor annoyance, or a trivial punishment.”
  3. An employee who has engaged in protected EEO activity may still be subject to discipline for legitimate reasons if the employer is acting based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline.
  4. The ADA prohibits not only retaliation for protected EEO activity but also “interference” with an individual’s exercise of ADA rights, such as asking for a reasonable accommodation.

These considerations under EEO laws which are always good to remember, are especially important as employers cope with unique situations with accommodation requests and high tensions in the workplace due to COVID-19.