COVID-19 and "regular" discrimination

National origin, race, age, pregnancy -- and coronavirus.

Dear Readers:

No, I have not quit blogging!

As you can imagine, we at Constangy have been consumed with getting up to speed on new laws like the Families First Coronavirus Response Act, debating among ourselves what they mean, answering employers' questions about the novel (get it?) legal issues, as well as editing and publishing a record number of bulletins and blog posts. (By my count, we've had 51 since St. Patrick's Day.)

As a result, I haven't had a moment to blog.

But this week, things seem to be returning to a saner pace. And, since my colleagues have very ably covered just about every COVID-19-related topic under the sun, I want to riff on an issue that was touched on by Sarah Phaff of our Atlanta Office this week: How does the COVID-19 crisis mesh with "regular" discrimination laws -- like Title VII and the Age Discrimination in Employment Act? 

The Equal Employment Opportunity Commission issued updated guidance last week on issues related to COVID-19. Most of the updates related to the Americans with Disabilities Act, which is no surprise since coronavirus is a medical condition. But there were some interesting issues related to these other laws. Sarah's bulletin has the full text of the EEOC guidance, and you will want to read it if you haven't already. Here is my "executive summary" in handy Q and A form, with a little commentary. And some sick gifs. (Get it?)

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Since the latest news reports indicate that COVID-19 may indeed have originated from a laboratory in Wuhan, China, we're trying to be careful. Can we refuse to hire Chinese people, or Americans of Chinese descent, or east Asians?

Dude, no! 

No.

No.

No.

Well, then, if we do hire them, can we make them go through more rigorous medical screening than we'd require of candidates from other parts of the world?

No. That would be a double whammy: National origin discrimination, and an ADA violation. You can conduct post-offer, pre-employment medical screening -- including coronavirus testing -- but you have to treat all offerees in the same job category the same. If you require Chinese candidates to undergo rigorous medical screening after a conditional offer of employment has been made, you must require it of all of your non-Chinese offerees in the same job category.

The EEOC has loosened up some of the strict ADA rules that usually apply to pre-offer medical screening, as well as screening of current employees. For example, in normal times an employer would not be allowed to take the temperature of a job applicant or an asymptomatic employee, but while we're in this national emergency, you can do those things. But you would still have to treat all similarly situated people the same way and not make distinctions based on national origin or any other legally protected category.

Does that also mean we can't tease our Chinese employees about infecting us with COVID-19?

What do you think? Gosh!

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If you learn -- or even have reason to believe -- that this is going on, you should treat it as you would any other workplace harassment issue. Take it seriously, investigate promptly and thoroughly, and (if confirmed) take appropriate disciplinary action against the harasser(s).

These rules apply whether the victim is a Chinese national, an American of Chinese descent, or Asian (or an American of Asian descent). They also apply if the victim is an American of non-Asian descent who is married to or otherwise associates with Asians or Asian-Americans.


Can we refuse to hire applicants from Detroit, then? I hear the coronavirus cases there are going through the roof.

It might not be illegal to discriminate against people from Detroit per se, but you would need to watch out for disparate impact -- when a neutral employment policy has a disparate impact on individuals of a particular protected group. It's very possible that screening out people from Detroit could have a disparate impact based on race, and then you'd be in trouble.

Plus, I grew up in the Detroit area, and I think we make fine employees.

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(Did she really say that?)

All right. Got it. No discrimination based on national origin or race. Here's another question. I've read that older people are especially vulnerable to COVID-19. We have an employee who is 68 years old and healthy. But for his own safety because he's over 65, we'd like to send him home until this pandemic blows over. We figured we'd let him use his PTO, so he won't lose any compensation. Can we do that?

Nope, that would be age discrimination. But the EEOC does say that you can offer him the option of telecommuting (assuming the job would allow for that). If that's a possibility, it would be up to him whether to take you up on that offer. And you probably knew this already, but if he's doing his job remotely, he's working, so you would have to pay him his regular wages. You wouldn't be allowed to require him to use PTO.

P.S. If you require him to use his PTO for an illegal leave, then he would be losing compensation. He would be losing his PTO!

This guy can't do his job remotely. He has to work on site. Would we be required to make reasonable accommodations for him in the workplace?

Assuming he has no known medical conditions, no. You don't have any legal obligation to make reasonable accommodations for an employee's age. But you could certainly consider making some accommodations for him voluntarily. Just don't go overboard -- if you accommodate too much, you may deprive him of opportunities that younger workers would get.

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I think you may have answered my next question. We have another employee who just announced that she is pregnant. Of course, she may be vulnerable to COVID-19, and we also wouldn't want to cause any harm to her unborn child. So, do I hear you saying that we'd be under no legal obligation to accommodate her?

Of course not! That would be way too simple. Since the U.S. Supreme Court's 2015 decision in Young v. UPS, employers are required to make reasonable accommodations for pregnancy and related conditions if they accommodate non-pregnant employees who are similar in their ability or inability to work.

In this case, an appropriate comparator would be an employee who had another medical condition that put him or her at heightened risk in the event of an exposure to COVID-19 -- for example, an employee with diabetes or an immune disorder. If you would accommodate that employee, then you would be expected to accommodate the pregnant employee, as well.

Well, thanks for nothing, Robin! You have ruined my weekend.

I missed you, too!

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Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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