Race, Sex, and Illness: Investigations in the COVID-19 Era
In the midst of burgeoning workplace complaints around racism and sexism, COVID practices, and whistleblowing, the best response is to investigate.
Last March the onset of social distancing during COVID-19 led to a decrease in workplace investigations as employers scrambled to survive. Solvency, not legal viability, was the name of the game from March till approximately June 2020, as social and professional rules of interaction changed at a dizzying pace, and the economy hung in the balance. Yet the early 2020’s decline in investigations has been met with an equal and opposite surge upward in recent months, as the pandemic and other world events galvanize employees to bring increasing numbers of workplace complaints.
Topics of investigation include pay inequities across gender and racial lines, OSHA violations, whitsleblow complaints, as well as instances of sexual harassment and microaggressions. In the months after George Flloyd’s death, somewhere between 15 - 26 million people took action across the US for racial justice. At the same time, allegations of ongoing racism in US workplaces received an enormous amount of attention. Employees’ corresponding rise in complaints send the message that even the most subtle forms of racism in the workplace -- whether blatant or of the microagression variety -- will be increasingly challenged.
In addition, employers need to prepare for a new and unique set of workplace complaints arising solely from the pandemic. For example, online communications appear to be exacerbating latent conflicts, whether because it’s too easy to hit ‘send’ on an angry email, or because there is no in-person, friendly interaction to balance out written tensions. The pandemic has also introduced other new, but now common, workplace scenarios: One employee claimed another was disobeying COVID safety regulations; while a lower-level employee argued that her company was unfairly disciplining rank-and-file employees for violating COVID distancing rules, while letting supervisors off scott-free.
A number of employees have also filed claims with OSHA, arguing that their employer chose to keep health information private at the expense of employee safety during COVID. This issue presents one of the key tensions of the COVID-era workplace: the need to disclose health risks related to COVID-19 versus the heightened need, and legal obligation, to protect employee medical privacy.
The above bases for complaint will be playing out in court and government agencies for many months to come. One important proactive step employers can take to stem this tide is to step in and quickly investigate such allegations, as is required by the California Fair Employment and Housing Act. But investigations should not be seen as simply checking the legal box to show that employers are taking actions to prevent illegal workplace activity. Investigations that don’t focus on symptoms but rather unearth organizational infrastructure -- its patterns and practices that form the root cause of the problem -- have profound impact on the good health of a company and reduce workplace conflict. In this way, workplace investigations can serve not only compliance objectives, but also prepare an organization for the changes it will need to make to keep its employees happy -- and thus stay viable.
Authors: Diana Maier, Partner, and Penina Eilberg-Schwartz, Project Manager/Paralegal.
The Maier Law Group is a boutique employment and data privacy firm that specializes in conducting workplace investigations, providing executive coaching, training employees, mediating both courtroom and workplace disputes (between two conflicting employees), and advising and counseling employers on HR and data privacy issues.
This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly at info@maierlawgroup.com.