Discrimination claims in Covid-19 era: a potential trap for employers?

The Covid-19 pandemic has created a lot of thorny issues for employers, such as navigating wage-and-hour laws with employees working from home, workplace safety regulations for those still at the office and the overall complexity of operating as normally as possible in an abnormal world.

Additionally, there’s the reality that many businesses are struggling to stay afloat. While nobody likes to let employees go who haven’t done anything wrong, staying in business in many cases may necessitate reductions in force. That doesn’t change the fact that these layoffs are coming at the worst possible time for your workers, with job opportunities so scarce.

This means those who are laid off may be more motivated than ever to view their termination as discriminatory or otherwise unlawful and to take their employer to court. In some instances their perceptions may be correct, as there are instances of employers who have used the pandemic as an excuse to get rid of workers for discriminatory or retaliatory reasons. But even if a worker doesn’t have a valid claim, you don’t want to deal with the headache of litigation. That’s why it’s critical to review your layoff plans with an employment attorney before carrying them out.

In the meantime, here are some tips that may help you stay out of hot water.

First, when considering layoffs examine your own plans carefully for red flags that could look like signs of discrimination. For example, the federal Age Discrimination in Employment Act makes it illegal to terminate workers over 40 based on their age. If your layoff targets only workers in this category, you risk a lawsuit, even if where you think you have valid non-discriminatory reasons for your decision. Similarly, if your layoffs disproportionately target workers of a particular ethnic group (even if unintentionally), the affected workers are likely to see the reduction in force as discriminatory.

Employers also need to be very careful when their layoff plans include individuals requesting paid family leave under the Emergency Family and Medical Leave Expansion Act or on temporary disability, and be mindful that such employees may see the situation as retaliatory. Similarly, layoffs that include workers who have complained about a lack of PPE or sanitary measures in the workplace or who have recently filed sexual harassment or other internal discrimination complaints leave businesses vulnerable to retaliation claims as well.

A recent Ohio case illustrates how employers who think they’re laying off workers with the best of intentions could find themselves at the business end of a discrimination suit. In that case, a physical therapy/rehab clinic laid off a 60-year-old human resources assistant who was the oldest employee at the company. The employer allegedly told her that a woman of her age wasn’t suited to be working for a company that large in light of the coronavirus.

The employee filed an age discrimination suit which the employer now will have to fight in court.

Assuming the allegations are true, it’s possible that the employer thought it was trying to protect her from a potentially deadly infection. Nonetheless, its decision would still be based on age, which would be illegal under federal and most likely state law.

The lesson here is that it’s a good idea to consult with an attorney to find out if your layoff plans put you at risk of a discrimination suit. That’s a lot better than having to consult with your attorney after being served with a complaint.

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