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COVID-19, Social Justice and Their Impact on Litigation for Years to Come
From an unprecedented global pandemic to civil unrest and increasing political polarization, the events of 2020 launched employers into uncharted territory as they faced a host of unique employment-related issues. As employers across California continue to navigate these issues, one thing remains certain: the impacts of COVID-19 and the social justice movement will likely result in a wave of litigation in 2021 and beyond. Consequently, special districts cannot afford to ignore these realities and must brace for an increase in legal claims.
The pandemic and resulting stay-at-home orders forced employers to find answers for employment-related questions in which there was little to no guidance. Despite acting with best intentions, special districts had to make tough choices that were not always welcomed by employees.
Disability discrimination claims are likely to arise from situations where an employer refuses to reasonably accommodate employees who may be at greater risk of severe illness if they contract COVID-19, or who live in households with someone who is high-risk. The failure to accommodate can range from denying telework requests to refusing to reassign an employee to a work location with less risk of exposure. Employees may also assert related claims for failure to engage in the interactive process.
In a Massachusetts case, a court issued a preliminary injunction allowing an employee to telework as a reasonable accommodation in lieu of termination. After the employee successfully teleworked for four months, the employer denied the request to continue teleworking. The employer issued a blanket statement requiring all managers to report to work and gave them PPE such as N95 masks. The court ruled that the employee’s moderate asthma constituted a disability, and, therefore, the employer should have engaged in the interactive process. Peeples v. Clinical Support Options, Inc., No. 3:20-CV-30144-KAR (D. Mass. Sept. 16, 2020).
Employers can also expect an uptick in leave-related claims. The Families First Coronavirus Response Act (“FFCRA”) provided employees with additional leave benefits. Litigation for FFCRA violations is expected to follow along with claims for unlawful denial of leave under the Family and Medical Leave Act, the California Family Rights Act, and other leave laws.
The California Occupational Safety and Health Act, requires employers to provide employees with a healthy and safe workplace. Special districts should anticipate litigation from employees who feel districts failed to implement sufficient measures to protect them from COVID-19. Relatedly, districts should be prepared to defend against employees who claim they have been retaliated against for complaining about workplace safety issues, or from exercising their COVID-related rights.
Social Justice and Promoting Diversity, Equity and Inclusion
The year 2020 will also be remembered for some of the largest public protests in American history and a particularly contentious election year. Influenced by these events, public employees participated in demonstrations, expressed their views on clothing, and spoke out against perceived inequities in and outside the workplace. As a result, employees’ speech on social media and at work became a hot topic for employers. The way employers handled these issues is expected to result in an increase of speech-related claims.
Employees claiming retaliation for speaking out can sue under the First Amendment. Public employees have a right to free speech and cannot be retaliated against for expressing their views if they spoke on a matter of “public concern,” spoke in a way that was not pursuant to their “official duties,” and suffered an “adverse employment action” as a result. Further, under Labor Code sections 1101 and 1102, employers cannot prevent employees from participating in politics or threaten employees to adopt certain political views.
There are a number of other legal theories employees can use to assert their speech rights. For example, speech related to race or other protected classifications can trigger the protections of anti-discrimination laws like the Fair Employment and Housing Act. In addition, California protects employees who engage in lawful off-duty conduct. Consequently, special districts may not be able to discipline employees for participating in peaceful demonstrations on their own time. Finally, employees complaining about their employer’s alleged illegal conduct may be protected by statutory whistleblower laws.
The charged political environment may also have implications beyond employee speech-related issues. For instance, employers are expected to see a shift in the types of discrimination and harassment claims employees file as claims based on race and gender increase. Further, amidst efforts to improve diversity and inclusion in the workplace, employers may be confronted with “reverse” discrimination claims by employees who feel employers are favoring employees who are not in the majority group in employment decisions. Pay equity claims may also increase.
While 2020 affected the workplace in ways employers could have never anticipated, special districts can take steps to mitigate the risk of litigation from decisions arising from COVID-19 and the social justice movement.
Since the statute of limitations for some claims can be up to three years, districts should maintain all supporting documentation for decisions they have already made. Further, if there is an opportunity to change course on a decision to mitigate risk, districts should consult with their attorneys.
Because the pandemic and political discord are likely to continue deep into 2021, special districts should also review and, if necessary, update their policies and procedures.
Regarding COVID-19, this means examining how the interactive process and reasonable accommodations are handled. Districts should also be familiar with each type of leave employees may be eligible for, and adopt sound return-to-work measures to create a safe working environment. Regarding workplace equity, this means reviewing policies related to hiring and promotion and anti-harassment, discrimination and retaliation, and conducting an equal pay audit. Finally, districts should exercise care when making decisions involving employees who exercised rights related to COVID or advocated for social justice.
Elizabeth T. Arce is a Partner and Kaylee Feick is an Associate at Liebert Cassidy Whitmore, one of the largest public sector employment and labor law firms in California. They can be reached at firstname.lastname@example.org and email@example.com.
This article originally appeared in the January/February 2021 California Special District’s Magazine.