COVID-19, Work-from-Home Privileges, and Employment Discrimination Law in New York

The COVID-19 pandemic impacted all aspects of life, including people’s work lives. For many, 2020 represented the first time they entered the world of working remotely. Working from home comes with its own unique set of benefits and drawbacks that have been discussed exhaustively over the last two-plus years. Whether you view remote work as a “plus” or a “minus,” it’s important to recognize that your employer can violate anti-discrimination laws if they allow (or prohibit) remote work on an impermissible basis, such as green-lighting it for white workers but turning down Black employees. A knowledgeable New York race discrimination lawyer can help you assess your circumstances to determine if what you experienced was illegal employment discrimination.

Several Black employees of New York City’s Department of Buildings alleged that was exactly what happened to them. The Black workers alleged race-based discrimination across multiple areas, ranging from discipline to promotions to training opportunities to city vehicle usage to overtime opportunities. According to the plaintiffs, specific instances of discriminatory treatment included unwarranted disciplinary write-ups of Black workers, denial of access to city vehicles, and excessive scrutiny of their requests for medical accommodations.

On top of those things, during 2020 and the COVID-19 pandemic, two white supervisors allegedly allowed white employees to work from home but forced three of the plaintiffs to work in the office. Furthermore, the supervisors forced one Black employee to share a vehicle with “coworkers who had been exposed to COVID.”

This, according to the trial court, was enough to overcome the city’s motion to dismiss and allow the workers to go forward with their race discrimination case under the New York State Human Rights Law.

The NYSHRL imposes on workers four proof elements necessary for a viable employment discrimination claim. You must establish:

  1.  that you were a member of a protected class
  2.  that you were qualified for the position you held
  3.  that you were the target of an “adverse employment consequence,” and
  4.  that discriminatory motives fueled that adverse action.

The adverse action (or actions) you allege must be significant enough to be more than what the law calls a “mere inconvenience.”

In the case of these city workers, their COVID-related evidence was crucial to establishing element #3. As the trial judge stated, the “denial of requests to work from home during the COVID-19 pandemic as set forth in the Complaint is a materially adverse change… because the risk to their health and safety amounted to more than a ‘mere inconvenience.’ The allegation that white employees were granted work-from-home privileges during the same period is sufficient to give rise to an inference of discrimination.”

Other Areas of Employment Discrimination and COVID-19 Workplace Measures

In the case of these workers, the employer allegedly implemented COVID-related measures and accommodations in a racially discriminatory way. Race discrimination, of course, is not the only way that a New York employer may violate employment discrimination laws in connection with COVID-19.

One of the more widely discussed ways is disability discrimination. As the federal Equal Employment Opportunity Commission has laid out, COVID-19 — especially cases of so-called “long COVID” — can itself be a disability that triggers an employer’s obligation to identify and provide a reasonable accommodation for that worker’s disability. For some individuals, it isn’t COVID itself but rather a heightened vulnerability for contracting COVID-19 and risk factors that make them especially likely to endure a more severe case of COVID. For those workers, permission to work from home on some (or all) days may be necessary to accommodate their condition.

Additionally, COVID and COVID-related workplace measures may constitute sex discrimination. A refusal to allow remote work could possibly amount to sex discrimination if that policy had a disparate impact on women (such as working mothers.) Additionally, the allowance (or disallowance) of remote work options may create issues with New York’s prohibition against caregiver discrimination or, in the case of new mothers, pregnancy discrimination.

Whether you’re a person with a disability, a woman, a person of color, or any worker who falls into one or more protected classes, the way your employer goes about taking actions related to COVID-19 may implicate issues of employment discrimination if done improperly. If that’s happened to you, get in touch with the New York race discrimination attorneys at Phillips & Associates. We understand how stressful it is to face inequality in the workplace, especially when you are also reckoning with the challenges of the pandemic. To find out more about how we can put the power of this office to work helping you, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

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