COVID-19, Furloughs, and Discrimination, oh my!

The Coronavirus pandemic has severely impacted American workplaces. Employees in various industries have reported cuts in work hours, cuts in salary, job-loss, and instructions to work from home. While the world as we know it is changing and adapting to the “new normal,” discrimination laws remain the same. Employees are still protected against discrimination, harassment, and retaliation. This is true even if you are working from home.

COVID-19 has lead to increased concern over workplace discrimination, an unintended consequence characterized by discrimination on the basis of age, race, national origin, gender, disability status, parenthood, and other protected characteristics. While some employers have had to terminate or layoff employees due to the financial impacts caused by COVID-19, other employers have wrongfully terminated employees belonging to protected groups under the guise of layoffs occurring against the backdrop of the COVID-19 pandemic. Such discriminatory terminations or layoffs are squarely prohibited under federal and Texas state laws. While Texas is an at will employment state, meaning an employer can terminate an employee, or an employee can quit for any reason, anti-discrimination laws create an exception to the at will doctrine.

Federal, state, and local laws protect employees from discrimination in the workplace. By way of example, Title VII of the Civil Rights Act of 1964 is a federal law that prohibits discrimination based on protected traits such as race, color, religion, national origin, and gender. It applies to employers with 15 or more employees and is enforceable regardless of what state you live in. Similarly, federal laws such as Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA) also protect employees from discrimination based on age and disability. Similarly, these laws apply to employers with 15 or more employees and are enforceable regardless of what state you live in. Additionally, Texas has enacted a state law designed to provide employees with similar protections to that of Title VII of the Civil Rights Act of 1964. Hence, an employer cannot use the COVID-19 pandemic to hide its discriminatory terminations, furloughs or layoffs of employees who belong to a protected group.

COVID-19 is a new disease and there is very limited information regarding risk factors for contracting the disease. However, the Centers for Disease Control (“CDC”) has advised, that based on the limited available information we do have, people 65 years or older or with an underlying health condition might be at a higher risk for severe illness or death from COVID-19. The Equal Employment Opportunity Commission (“EEOC”) has recently issued guidance on federal anti-discrimination laws and COVID-19. However, most of the EEOC’s guidance is related to the ADA, with very little guidance provided to older workers who are concerned about contracting COVID-19.

Now that the state of Texas is slowly reopening and businesses are requiring employees to return to work, employers may receive requests from older employees for permission to telework and/or for additional leave. However, the EEOC has issued guidance noting that employers do not need to accommodate an older employee even if the employee is afraid of returning to work and contracting COVID-19 because he or she is older. Unlike the ADA, the ADEA does not require employers to provide employees with reasonable accommodations because of their age. As a result, employers have no legal obligation to allow older employees to telework or take leave, unless, however, the older employee has an underlying health condition which could be considered a disability under the ADA. Still, employers have a legal obligation not to discriminate against older employees. That means if an employer is allowing other employees to take leave and/or telework due to fear of contracting COVID-19, the employer must also ensure that older employees have the same opportunity.

If you believe your employer has subjected you to a termination, layoff, or furlough based on a protected trait, or refused to accommodate your disability, you can file a complaint of discrimination with the Texas Workforce Commission (“TWC”) or the EEOC. Note that you must file your complaint with the TWC within 180 days from the date on which the discrimination took place. The 180-day filing deadline is extended to 300 days for a complaint filed with the EEOC.

Moreover, if you have been terminated, furloughed or laid-off, you may be eligible for Texas unemployment benefits. You can apply for unemployment benefits online or via phone. If your unemployment claim is denied, you may appeal the decision by requesting a hearing, in writing, within 14 days from the date included on the Determination Notice.

Even in the midst of the COVID-19 crisis, longstanding concerns about workplace discrimination remain and have increased. I understand the difficulties in navigating the legal system in an already difficult time. If you have been illegally terminated, furloughed, or laid-off, contact my office and schedule an initial consultation with a Dallas Employment Lawyer. I will be happy to discuss your case with you and walk you through the law and any available remedies to you. If you have been denied unemployment benefits and need assistance appealing your unemployment decision, please contact my office and schedule a consultation with me. I am happy to represent you through your unemployment appeal hearing.

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