Ensuring equal opportunity in the workplace amid COVID-19 challenges

Last year, a coffee shop refused to let two employees work unless they wore masks to stop the spread of COVID-19. A pharmacy took the opposite position and sent a technician home for wearing a mask. At a facilities management company, a worker with pulmonary disorders making her susceptible to infection was denied a request to work remotely.

The Equal Employment Opportunity Commission brought cases in all three incidents, saying there were accommodations the businesses could have granted workers and that refusal to do so amounted to discrimination.

EEOC Chairwoman Charlotte Burrows was a featured speaker at NRF’s recent Retail Law Summit, and said those cases were just a few examples of challenges seen during the COVID-19 pandemic. The pandemic has created new situations where workers are being discriminated against while longstanding discrimination based on issues such as race, religion, gender or disabilities has continued, she said. And working women, people of color and older workers are being disproportionately impacted.

Burrows said her agency won’t hesitate to use its enforcement power to protect workers. But she would rather work with employers to avoid getting to the point where discrimination occurs.

“Our primary goal is to recognize that this a really tough thing that we’re all dealing with now and to make it as easy as possible to get the information out there for employers that are just trying to manage all of the different new issues that are coming up,” she said. “We have the enforcement arm as we go forward. But the real interesting piece is how do we get through the problem solving together. That’s where most employers are, just drinking from a fire hose right now.”

To that end, the EEOC has deployed a wide range of resources, from FAQs and guidance on its website to working with groups like NRF to reach employers through conference calls or webinars. Commission member Keith Sonderling addressed vaccine exemptions with NRF members last October, for example.

“Ensuring compliance with the law while navigating these new complex issues is really a big job,” Burrows said. “I recognize that as retailers you all are on the frontlines helping to keep workers and the public safe.”

Presented for the second year in a row, the summit featured speakers like Walmart top legal officer Rachel Brand and attorneys from other retail company legal departments and major law firms addressing issues as varied as COVID-19, cybersecurity, privacy and wage-and-hour laws. Burrows spoke during a session on equal opportunity in the workplace with NRF Chief Administrative Officer and General Counsel Stephanie Martz.

“Retailers continue to navigate Covid,” Martz said, noting legal and operational concerns in protecting the health and safety of workers and customers, keeping stores and other operations open and giving workers incentives to be vaccinated. “The legal issues that are raised by Covid are not substantively new, but they are certainly unprecedented in their scope.”

“The context of a global pandemic and the sheer volume of requests are presenting real challenges for employers."

Charlotte Burrows, EEOC Chairwoman

One issue discussed was the legal obligation of employers to provide a religious accommodation for workers who object to vaccination, testing or wearing a mask. Burrows said accommodations can range from wearing a mask and social distancing rather than being vaccinated to working remotely or working a shift than minimizes contact with coworkers or customers. But she acknowledged that options are limited in retail, where most workers need to be on-site and in contact with customers.

While legal standards for accommodations are well established, “the context of a global pandemic and the sheer volume of requests are presenting real challenges for employers,” with large companies receiving hundreds or even thousands of requests, Burrows said.

Martz said providing testing as an alternative to vaccination, for example, could cost a national retailer millions of dollars if deployed for all workers requesting it. Burrows said such an expense could potentially meet EEOC’s standard of showing “more than minimal cost or burden” in order to legally deny an accommodation.

“That is deeply relevant in the retail context,” Burrows said. “While accommodating a handful of employees may not impose an undue hardship on business operations, employers can consider and probably should consider the cumulative cost or burden of granting large volumes of accommodation requests.”

In other issues, Burrows said experts had expected less sexual harassment during the pandemic given smaller in-person workforces. But with fewer potential witnesses, in-person harassment has continued. And remote work doesn’t make harassment impossible, with inappropriate objects sometimes seen in backgrounds on Zoom sessions or supervisors making inappropriate calls to subordinates.

Meanwhile, racial discrimination has included physical threats, “unbelievably egregious” incidents such as nooses displayed in workplaces, and 10,000 cases of harassment and violence against Asian Americans last year, she said.

As the economy builds back, there is a critical opportunity to expand diversity, equity and inclusion, and some companies are using technology like artificial intelligence to avoid biases inherent in hiring through personal networks, Burrows said. Nonetheless, the EEOC is concerned such initiatives could become a “high tech pathway to discrimination” if not used properly. If a company has not already achieved diversity, “it’s hard to bring a machine in and change that,” she said.