Make Sure Your Employer Is Not Using COVID-19 To Discriminate

Understanding How Employers Can Leverage COVID-19 To Release Workers on Discriminatory Grounds

Mandatory nonessential business closures as a result of the COVID-19 pandemic triggered an unprecedented wave of furloughs throughout the country. Some sectors were forced to effectively close entirely, while others were restricted to limited capacities, necessitating a significant reduction of workforces in many cases.

As the pandemic continues to spread throughout the country and seems poised to surge as we approach the winter months, it has become fairly clear that many businesses will not be able to operate at full capacity for some time. As a result, many companies have begun to initiate layoffs of furloughed staffs. Businesses in sectors that are able to partially reopen with modified operations have generally been only to “bring back” a limited portion of their employees.

Employers will have to make tough decisions on who to terminate, who to continue to furlough, and who to bring back to work. However, they cannot make these decisions on discriminatory grounds. Large layoffs are often used to mask discriminatory practices, and waves of dismissals related to COVID-19 are no different. Below, we will review how employers will sometimes leverage these types of situations and what you can do to protect your rights.

How Employers Must Make Employment Decisions

Many businesses were forced to completely shut down to prevent the spread of COVID-19 in the early days of the pandemic. This was often accompanied by a mass furlough of a company’s workforce if the work could not readily be done from home. In other situations, only some employees were furloughed, while others remained on the payroll. As some shutdown retractations are relaxed or lifted, businesses were able to partially or completely reopen their facilities.

In an ideal world, a business reopening would mean the entirety of its employees are asked to return to work. Unfortunately, the economy has yet to recover from COVID-19’s impact, and the virus is still spreading. Many business facilities are still forced to operate at a reduced capacity, which necessitates fewer employees. Even businesses that can fully open are likely to see lower demand. The result is a situation where employers might be forced to terminate or continue to furlough many of its employees, even if the business is operating in some form.

An employer must have a non-discriminatory reason for every employment decision it makes, including choosing who to bring back to work, who to continue to furlough, and who to terminate. For many businesses, that reason comes down to practical logistics in the age of a pandemic. What work can be done remotely? To what capacity can a facility (like a restaurant or store) reopen, and how many employees will be needed to run it? How much demand for the business’s goods and services exists at the present time?

The answers to these questions should go into determining who will ultimately be asked back to work. An employer acting appropriately will assess the current needs of the business as well as factors like past performance and seniority to decide who will immediately regain employment.

Still, some employers may not act in good faith and use the mask of COVID-19 to engage in discriminatory behaviors. This can include keeping someone on furlough or outright terminating them, using pandemic conditions as a justification to hide their true intentions. This is considered wrongful termination and can be fought with effective legal representation.

Signs That Your Employer May Be Engaging in Employment Discrimination

As a reminder, an employer cannot fire or choose not to bring you out of furlough as a result of your:

• Age
• Race
• Religion
• National Origin
• Sexual Orientation
• Gender Identity
• Pregnancy Status
• Disability

Consider a scenario where a restaurant is now permitted to operate at 50% capacity. The business will now be able to bring back approximately half of its employees from furlough. However, they appear to specifically only ask back only younger employees, even though some of the older staff members have higher seniority and strong performance records. This instance is likely a case of age discrimination, and if you are among the older employees who has been left on furlough or terminated, you may have grounds for a lawsuit.

Employers will never admit that they are participating in discriminatory behaviors and will attempt to use other reasons, including COVID-19-related hardships, as the cause of layoffs or continuing furloughs. Watch out for employment decisions that appear to rely on contradictory excuses or seem to allow for a lot of exceptions, or waves of layoffs that appear to single out protected classes. If necessary, ask for a written explanation on why you are being laid off or not being asked back. Consult with your colleagues and look for contradictions.

Note that some employers may choose to not to ask pregnant or disabled employees to return due to perceived risks associated with COVID-19 exposure. Even if an employer’s intentions in these sorts of situations are well-meaning, this is still considered employment discrimination. A pregnant or differently abled employee must make their own decision on whether to accept an offer to return.

Employers might also use COVID-19 to unlawfully dismiss employees who have recently filed a formal complaint, including those involving sexual harassment, workplace safety, or workplace discrimination. This is considered an act of retaliation and constitutes wrongful termination.

How You Can Fight Discrimination and Wrongful Termination

If you believe you have suffered employment discrimination, you should immediately contact a qualified attorney. The statute of limitations for the state of Connecticut is very limited: You must file a complaint within 180 days of the incident or within 180 days of the date you became aware of the discrimination.

Our experienced attorney at The McMinn Employment Law Firm can fight for you in cases involving employee discrimination, wrongful termination, and retaliation. A successful lawsuit can potentially grant you reinstatement of employment, the recovery of any lost wages, punitive damages, and additional rewards for any pain or suffering you experienced.

Our team is familiar how these cases are adjudicated and can work to build a robust case that holds employers unaccountable for discriminatory behavior. With COVID-19 bringing economic hardship to many, the stakes have never been higher. We can review the specifics of your situation and advise you on what legal strategies we can pursue.

Do not hesitate to call (203) 930-1600 or contact us online to discuss your case. We offer our legal services in English and Spanish.