EEOC Updates COVID-19 Guidance to Address Retaliation

Frank Ferreri

Washington, DC ( – As life in the time of COVID increasingly becomes a reality that is here to stay, and the virus and various mandates related to it impact workplaces, the Equal Employment Opportunity Commission has routinely updated its coronavirus guidance.

In its latest additions to the Q&A document, the commission addressed anti-retaliation protections workers are due under the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and Title VII. Here are the highlights of the EEOC’s latest additions.

Topics EEOC Guidance Points
Job applicants’ and employees’ protections from retaliation from exercising equal employment opportunity rights in connection with COVID-19 Job applicants and current and former employees are protected from retaliation by employers for asserting their rights under federal EEO laws. Protected activity can take many forms, but engaging in protected activity does not shield an employee from discipline, discharge, or other employer actions taken for reasons unrelated to the protected activity.
Examples of protected activity
  • Filing a charge, complaint, or lawsuit, regardless of whether the underlying discrimination allegation is successful or timely.
  • Reporting alleged EEO violations to a supervisor or answering questions during an employer investigation of the alleged harassment.
  • Resisting harassment, intervening to protect coworkers from harassment, or refusing to follow orders that would result in discrimination.
  • Requesting accommodation of a disability (potentially including a pregnancy-related medical condition) or a religious belief, practice, or observance regardless of whether the request is granted or denied.
Who is protected from retaliation Retaliation protections apply to current employees, whether they are full-time, part-time, probationary, seasonal, or temporary.

Retaliation protections also apply to job applicants and former employees.

These protections apply regardless of an applicant’s or employee’s citizenship or work authorization status.

When retaliation protections apply Participating in an EEO complaint process is protected from retaliation under all circumstances.

Other acts to oppose discrimination are protected as long as the employee is acting on a reasonable good faith belief that something in the workplace may violate EEO laws, and expresses those beliefs in a reasonable manner.

When an employer’s action is serious enough to be retaliation Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity.

Depending on the facts, this might include actions such as denial of promotion or job benefits, non-hire, suspension, discharge, work-related threats, warnings, negative or lowered evaluations, or transfers to less desirable work or work locations.

Retaliation could also include an action that has no tangible effect on employment, or even an action that takes place only outside of work, if it might deter a reasonable person from exercising EEO rights.

What is not retaliation Depending on the specific situation, retaliation likely would not include a petty slight, minor annoyance, or a trivial punishment.
Taking action against someone who has engaged in EEO activity Employers are permitted to act based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline.

For example, if an employee performs poorly, has low productivity, or engages in misconduct, an employer may respond as it normally would, even if the employee has engaged in protected activity.

Similarly, an employer may take non-retaliatory, non-discriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity, such as an accommodation request.

Additional ADA rights The ADA prohibits not only retaliation for protected EEO activity, but also “interference” with an individual’s exercise of ADA rights.

Under the ADA, employers may not coerce, intimidate, threaten, or otherwise interfere with the exercise of ADA rights by job applicants or current or former employees.

The ADA also prohibits employers from interfering with employees helping others to exercise their ADA rights.