Will Employee Discrimination Increase When Business Resumes?

Across the country, businesses are slowly starting to reopen as some of the COVID-related restrictions are being lifted. This is good news for employers and employees who have experienced first-hand how devastating the pandemic has been on the economy. Ideally, when companies are given the green light to reopen, employers will be able to rehire all of their employees and be fully operational within a short period of time. However, it will likely be a gradual process, and many companies may not be able to rehire all of the employees who were laid off or furloughed. It could take many months for the demand for products and services to return to what it was pre-pandemic.

When determining which employees to rehire, employers must be cautious about making decisions that could lead to discrimination claims, including refusing to rehire an employee based on age, race, gender, religion, or any other protected class. Employers must have a legitimate reason for selecting one employee over another and must provide documentation that supports their decision. For example, an employer may choose to rehire an employee based on seniority or specific operational needs. Conversely, an employer may choose to avoid rehiring an employee if there are limited positions available, and the employee had documented performance issues prior to the pandemic.

In some cases, seniority does not necessarily guarantee that an employee will be rehired, particularly if the position is not yet warranted as businesses slowly begin to reopen. For example, if the most senior employee at a high-end restaurant is a sommelier, but the restaurant will only be operating at half-capacity, there may not be a need for a dedicated sommelier. Either way, the employer must document the factors used to make the decision. In addition, the company must show that it is consistent in how it applies their hiring criteria.

What are Examples of Discrimination?

According to a recent report by the Congressional Research Service, the number of discrimination concerns involving older or pregnant employees is expected to rise as employees return to work after months of telecommuting due to the Coronavirus. While employers may have concerns about rehiring pregnant employees or those who are 65 years old or older because of their increased risk of COVID-19 complications, they can face a federal discrimination lawsuit.

Pregnant women are encouraged to take heightened precautions to avoid exposure to COVID-19, but they cannot be denied employment based on their pregnancy. In addition, pregnancy discrimination should be avoided at all costs. Employers may not deny a pregnant woman’s request for a flexible schedule, protective gear, or the option to work from home during the pandemic if a similar request was granted to another employee with a similar ability to work.

Older workers are also more susceptible to COVID-19; however, employers may not send an older worker home, demand that they work remotely, or take an involuntary leave because of an increased susceptibility to COVID-19. However, according to the Age Discrimination in Employment Act (ADEA), which does not currently have any provisions for required accommodations for older employees, employers are not required to grant requests for special precautionary measures related to the pandemic. Employers who voluntarily make changes in the workplace, including schedule changes that benefit older workers, allowing older employees to work from home, or spacing out workstations to allow for social distancing, would not violate the ADEA.

Will an Extended Period of Unemployment Impact a Worker’s Future Job Prospects?

As businesses reopen, there is no guarantee that all employees will be able to return to work immediately, if at all. For workers who have been unemployed during the pandemic, this can be extremely frustrating, particularly when other job prospects are few and far between. If workers are not rehired by the company they worked for prior to the pandemic, they may be faced with accepting a position below their skill level at a reduced salary or even a part-time job. Unfortunately, this is not ideal financially, and it can send the employee’s career trajectory off course.

Despite having a valid reason for being out of work, employers may avoid hiring prospective employees if there are gaps in their work experience, or if they accepted a job that deviated from their career path. Employers should not penalize workers who were laid off or accepted a position they were overqualified for, particularly during the COVID-19 pandemic. Companies are urged to develop effective policies and practices that help employers avoid making hiring decisions that are based on unfair stereotypes. Just as it is unfair to discriminate a prospective employee or withhold employment based on race, gender, or age, employers should not avoid hiring an individual simply because of a recent period of unemployment.

What are my Options If I am Not Rehired?

Getting people back to work and rebuilding the economy will not happen overnight. There is no guarantee that all employees will be able to return to the job they had prior to the pandemic. For the businesses that were able to survive the pandemic and take steps to reopen, many had to eliminate positions. As a result, many employers have been unable to rehire valued employees. However, there are some cases where employers make hiring decisions based on factors that are legally prohibited. This has become an issue for some employees as companies are starting to reopen, and employers are beginning to rehire workers who were laid off or furloughed. In some situations, employers are not rehiring certain employees, including older workers and pregnant women.

The following are factors that employers are legally prohibited from considering when deciding to rehire a former employee:

• Discrimination: Discrimination in the workplace is illegal. Employers may not make hiring decisions based on age, sex, race, religion, disability, or any other protected class. If an employee believes that they were denied employment based on any of these reasons, they may wish to file a discrimination claim.
• Credit history: With the current state of the economy, many people’s credit scores have taken a hit. Fortunately, many states have passed laws prohibiting employers from requesting a credit report as part of the application process. If an applicant was not rehired based on their credit score, they may have a legal claim.
• Workers’ Compensation claims: Employers may not refuse to hire an applicant because they filed for Workers’ Compensation in the past. While there are limited exceptions, any individual who was denied employment because of a previous Workers’ Compensation claim will likely have a legal claim against their employer.
• Criminal records: Depending on the state, employers may consider criminal history when deciding whether to hire an applicant. In New Jersey, employers may not ask a prospective employee about their criminal history until the later stages of the application process. Automatically disqualifying an applicant who has a criminal record is considered discriminatory.

In these difficult times, not being able to return to work can be emotionally and financially devastating, particularly if a worker remains unemployed for an extended period of time. Employees who were laid off or furloughed during the COVID-19 pandemic and were not rehired by their employer, may file a claim against their former employer if they believe they were discriminated against. These cases can be difficult to win, particularly if the employee has little evidence.

The more documentation that the employee has, including copies of emails, voicemails, messages, and texts about their employment status, the more likely it is that the claim will have a successful outcome. An experienced employment lawyer can thoroughly review the case and recommend the best legal course of action.

Cherry Hill Employment Lawyers at Sidney L. Gold & Associates, P.C. Advocate for Victims of Employment Discrimination

If your employer did not offer you a position to return to work and you believe it was discriminatory, contact our Cherry Hill employment lawyers at Sidney L. Gold & Associates, P.C. Our skilled legal team will work tirelessly to protect your legal rights. We will not stop fighting for you until justice has been served. For a free consultation, call us at 215-569-1999 or contact us online. Located in Pennsauken, New Jersey, we serve clients throughout South Jersey, including Cherry Hill, Haddonfield, Marlton, Moorestown, and Mount Laurel.