Although we briefly touched on discrimination as a consideration your decision-makers must be mindful of, the issue is undoubtedly ripe for further discussion. Last week, Syntrio published an update outlining several employment law-related challenges associated with reopening the business in the wake of the COVID-19 shutdown that has hindered the economy for the better of the last two months. This article will address the equal employment opportunity (“EEO”) issues you must consider when determining which employees to bring back after furlough or layoff and which employees may present challenges should the need arise to have another reduction in the workforce in the immediate future.

According to the United States Department of Labor,  more than 36 million Americans have filed unemployment benefits in the last two months. This figure tells us what we already knew: businesses have had to dramatically cut back on staffing due to COVID-19-related closures and economic difficulty. Now that more states are easing stay-at-home restrictions, some companies are assessing their staff and determining that the time is right to bring back several employees who have been let go since March. With that reopening comes the need to review the criteria employers are using to re-hire or bring back employees who have been out of work due to the pandemic to prevent the potential for claims of discriminatory hiring practices.

Given the current economic circumstances, it is reasonable to assume that not all businesses will be able to immediately resume operations at the same level of staff they had before the outbreak. If they could, it would be relatively easy to avoid discrimination claims by simply returning everyone laid off or furloughed to the positions they held when the business ceased or reduced. If you cannot bring back everyone, you must be careful to rely on objective criteria for returning employees to avoid discrimination claims.

 Analysis of a Discrimination Claim

The most common form of employment discrimination is known as “disparate treatment” discrimination. To prove disparate treatment discrimination, an employee must first show that (a) they were a member of a protected class; (b) the employer knew of their membership in that class; (c) acts of harm occurred; and (d) others who are similarly situated were either treated more favorably or not subjected to the same or similar adverse treatment. An employee claims another employee is being treated more favorably than they are due to membership in a protected class. Protected classes include race, color, gender, national origin, sex, religion, or others.

It is essential to mention that in a discrimination case, the employer will always have the opportunity to provide a legitimate, nondiscriminatory reason for its actions. Assuming the employer can do so, the analysis will shift back to the employee to prove the legitimate reason was a pretext (justification but not the real reason) for the allegedly discriminatory conduct.

 Discrimination Following COVID-19 Reopening

The last two months have taken a toll on employees and employers alike. As we begin to reopen the workforce, there will undoubtedly be some employees who are unable to get their job back. When these employees find out they will not be able to return to work, they may be angry with the employer and look for reasons they were not re-hired beyond the economic realities of the situation. These reasons can (and often do) include fears that a failure to re-hire was a  discriminatory action. Therefore, employers need to use legitimate, nondiscriminatory reasons for selecting employees who return to work.

 Performance-based Decisions as the Basis for Discrimination

Your business must maintain thorough records of all discipline and other issues to avoid arguing that sudden “performance issues” are a pretext for discrimination based on a protected class. The most common criteria that are objective and nondiscriminatory include seniority, documented performance, and positional need. For example, an employee I knew well-had surgery and was off work for several weeks. Shortly after returning, he notified the employer that his wife was pregnant with their first child and would take a brief leave after birth. Suddenly a flood of emails came in regarding his performance. He was ultimately terminated. Suffice it to say, a discrimination suit followed shortly after that.

Suppose performance is the nondiscriminatory reason for choosing one employee over another. In that case, you must be sure that the issues leading to that determination are well-documented in the past through legitimate sources such as the personnel file and other means. Also critical to ensuring objectivity and nondiscriminatory reasoning in reopening your business is documenting the decision-making process. Write out the reasoning for your decisions, and keep those reasons noted and available if necessary.

 Seniority as the Basis for Age Discrimination

On its face, seniority is an accessible and non-discriminatory basis for returning your employees to work. Generally speaking, this approach is reasonable and offers a quality rebuttal if your employee argues they were subject to employment discrimination. That said, the system is not infallible by any means. For example, there could be legitimate reasons your business may need to bring back junior employees over those in senior positions. Take, for example, the retail store that employed many shift managers but now can only have five people in the store at any given time. Hiring a second cashier instead of a more expensive manager may make business sense. Still, the more senior (and possibly older) employees could argue that bringing back more junior employees was a pretext for age discrimination.

Again, it is essential to document the decision-making process and be neutral in your employment decision. Moreover, suppose one non-discriminatory approach was used during the layoff period. In that case, the same procedure should be used to bring back employees now that there is the opportunity to reopen your business.

Finally, you must know how your decisions may be perceived by those employees chosen for re-hire. Taking the seniority example earlier, if seniority were the process selected for layoff, it would be reasonable to use that criterion in bringing back employees, even if that means offering them positions that are needed right now rather than commensurate with what they were doing when they were selected for layoff.

 COVID-19 Risk Should Not be a Factor

Your business should pay careful attention to risky considerations when re-hiring employees. For example, you may be concerned that older employees, women who are or may become pregnant, or those with pre-existing health conditions may be at greater risk of contracting COVID-19 if they return to work. This thinking is an easy trap that can lead to a discrimination claim. While you may well have your employees’ best interests at heart, each listed example would be considered making an employment decision based on a protected class (age, sex, or disability). Please let that be a reminder to be objective and neutral in your employment decisions and not to factor COVID-19 risk into your decisions.

We are emerging from a great unknown into a time of continued uncertainty. The hope of an economic reopening also brings a heightened number of concerns for your business. We encourage you to conduct discrimination training for your managers and decision-makers; we are available anytime to discuss this option as you take steps to reopen your business. Contact Syntrio today to discuss options for training your managers on the prevention of discrimination in the workplace.