New Possibilities For Employment Discrimination Emerge in Post-Pandemic Era

While society as a whole has largely moved on from Covid-era restrictions and has returned to pre-pandemic norms, there are millions of individuals who are still stuck in what has been accurately referred to as “Pandemic Limbo.” Immunocompromised individuals haven’t had the luxury of letting their guard down—they are still paranoid to venture out in public, and when they do, they are still suffocating behind their masks, wondering if the limited time they spend engaging with society will lead to a hospital stay or even worse. Those protections that were previously in place to protect these individuals have been largely, if not fully, abandoned by states, cities and employers. Mask mandates are now a relic of the past and flexible work options continue to be curtailed. As the world moves on, the potential for new, unrecognized constitutional violations in the workplace still linger. Approximately 3% of the population in the United States—about 7 to 10 million people—is immunocompromised and less capable of fighting infections due to alterations in the immune system. This significant swath of the population has been forced to navigate the post-pandemic return to work in environments that do not appreciate the daily risks they face or otherwise provide protections or accommodations that ensure their health and safety is protected. In the workplace, an employer’s failure to provide the necessary protections and accommodations for their immunocompromised employees may subject them to liability for discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and to claims under the Americans with Disabilities Act.

Title VII makes it unlawful for an employer to discriminate against someone on the basis of race, color, national origin, sex (including pregnancy, sexual orientation and gender identity), creed or religion, genetic information, age, veteran status, citizenship, and physical or mental disabilities. Each of these categories is referred to as a “protected class.” In addition, Title VII prohibits retaliation against a person because they complained about discrimination, filed a charge of discrimination (such as internal charges filed with the employer’s equal opportunity office or human resources department or external charges filed with the Equal Employment Opportunity Commission or Texas Workforce Commission), or participated in an employment discrimination investigation or lawsuit. Critically, Title VII does not only prohibit intentional discrimination—practices having the effect of discriminating against individuals because of their protected class are also barred.