As we reported earlier this month (see here), our ongoing tracking of COVID-19 employment litigation trends shows that the types of lawsuits employees are filing against their employers continue to fall within the same basic categories that we reported on in July (see here). Part I of this update series provided a summary of case law developments relating to employers’ alleged inability or unwillingness to provide a safe working environment, and leave and retaliation claims. In this post, we address case law developments involving discrimination and reasonable accommodation claims, as well as a brief look at how COVID-19 could impact wage and hour lawsuits.
Early Decisions Involving Discrimination and Reasonable Accommodations
The COVID-19 virus is especially dangerous to individuals with many types of pre-existing conditions. Many COVID-related case filings have alleged discrimination based on an employer’s refusal to provide reasonable accommodations to employees who have pre-existing disabilities that make them more vulnerable to the virus, or who live with people who have such conditions.
For example, in Bess v. District of Columbia, No. 19-CV-3152 (JEB), 2020 WL 4530581 (D.D.C. Aug. 6, 2020), an employee with the District of Columbia Department of Corrections who was a “class member and active participant” in an ongoing class action lawsuit against the Department alleging systemic sex discrimination sought to amend her complaint to add allegations of retaliatory conduct stemming from the Department’s alleged failure to provide a reasonable accommodation to protect her from COVID transmission. The plaintiff alleged that she suffered from diabetes, which put her at greater risk of severe symptoms and complications from COVID, but that the Department had repeatedly assigned her to medical and quarantine units that housed inmates who were suspected to have the disease. Id. The court held that this was enough to survive a motion to dismiss because: “(1) she suffers from diabetes; (2) her supervisors had notice; and (3) her employer denied her accommodation request after she asked that she not be assigned to locations which put her at risk of contracting COVID-19.” Id. at *3 (citations and quotations to the record omitted).
Courts have also had to reassess what counts as a disability in the COVID-19 era in light of its more serious consequences for people with preexisting conditions. In Peeples v. Clinical Support Options, Inc., No. 3:20-CV-30144-KAR, 2020 WL 5542719 (D. Mass. Sept. 16, 2020), the plaintiff (pronoun “they”) sought a preliminary injunction that would preclude their employer from terminating their employment due to their refusal to work in the office given the pandemic. Plaintiff suffered from moderate asthma, which put them at greater risk from COVID according to the CDC and their physician. The employer…
Read More: COVID-19 Employment Litigation Trends Update: Part II