Working for Justice

COVID-19: Mask for Discrimination?

Posted May 2nd, 2020 by in Employment Discrimination.

The unprecedented challenge of the global COVID-19 pandemic has caused uncertainty in every aspect of society. Certainly, the economy has been no exception, and employers are taking a variety of approaches and tactics in an attempt to weather the storm. Many employers are asking their employees to take pay cuts, with percentages often varying by title or overall compensation level, ostensibly to cope with short-term slowdowns and in anticipation of a rapid, post-quarantine recovery. Other employers are taking the more dramatic approach of laying off segments of their workforce. It is critical that you understand the terms of the elimination or reduction in your employment and that you assess your employer’s conduct for any liability.

Permissible v. Impermissible Conduct

In most situations, unless there is a contract stating otherwise, it is perfectly legal for an employer to reduce hours and wages. Unfortunately, although the federal government has stepped in to ease some of the pain of the economic victims of COVID-19, most laid off or furloughed employees will not have legal recourse against their employers. However, an employer cannot use the pandemic to excuse actions that might otherwise appear to be discriminatory.

Singled Out?

Essentially, it comes down to discretion. If the employer lays off or furloughs everyone, or entire positions, or all staff at a given location, then it is unlikely that their actions will be considered illegal. However, if only select individuals are singled out for reductions, it is possible that the employer is using the pandemic as pretext for accomplishing discriminatory ends. If there is a disproportionate impact on individuals who are of a certain race, religion, national origin, sex, or who share any other protected characteristic, this may be discriminatory. Similarly, if the employer gets rid of employees who have engaged in legally protected activity, such as complaining of discrimination in the past, but retains those who have not, the employer may be held liable for such actions.

Reach Out to Us if You Believe You May Have Been the Victim of COVID-19 Discrimination

Ultimately, any inquiry into the legality of an employer’s actions is going to be a fact-intensive process, and that is likely to be especially true in the tumultuous, uncertain employment environment into which COVID-19 has thrust us. We are here to ensure that your right to work free of discrimination is not impaired, even in these uncertain times. If you feel that your employer is using the pandemic as an excuse to accomplish illegal ends, we are here to help you sort through it.

Conor Ahern is an Associate in the Washington, D.C. office of Sanford Heisler Sharp, LLP. He represents employees in individual and class actions involving discrimination and civil rights.
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