Although society as a whole has largely moved away from Covid-19 restrictions and returned to pre-pandemic norms, millions of people are still stuck in what is aptly described as the pandemic limbo. Immunocompromised people haven’t had the luxury of letting their guard down, they still become paranoid about going out in public, and when they do, they still stew behind their masks, wondering if the limited time they spend interacting with the public will lead to a hospital stay or even worse. Those protections that previously existed to protect these individuals have been largely, if not completely, abandoned by states, cities and employers. Mandatory mask wearing is now a relic of the past and flexible working options continue to be restricted. As the world changes, the risk of new, unrecognized constitutional violations in the workplace remains. About 3% of the U.S. population, about 7 to 10 million people, are immunocompromised and less able to fight infections because of changes in the immune system. This significant segment of the population has been forced to navigate a post-pandemic return to work in environments that underestimate the daily risks they face or otherwise fail to provide protection or accommodations that protect their health and safety. In the workplace, an employer failing to provide necessary protections and accommodations to its immunocompromised employees may expose them to liability for discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and claims under the Americans with Disabilities Act.
Title VII states that it is 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 disability. Each of these categories is called a protected class. Additionally, Title VII prohibits retaliation against a person who has filed a discrimination complaint, filed an allegation of discrimination (such as internal charges filed with an employer’s equal opportunity office or human resources department, or external charges filed with the Equal Employment Opportunity Commission or Texas Workforce Commission) or has been involved in an employment discrimination investigation or lawsuit. Most importantly, Title VII does more than just prohibit the practice of intentional discrimination resulting in discrimination against individuals due to their protected class are also excluded.
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