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Issue

  1. With the new vaccine mandates, employees who have opted out of getting the vaccine are being verbally harassed or shamed for not getting the vaccine. Are these grounds for a hostile work environment claim?

Statement of Facts

Harassment and hostile work environments are forms of employment discrimination that violate Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA). Harassment is unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. 

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name-calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:

  1. The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
  2. The victim does not have to be the person harassed but can be anyone affected by the offensive conduct.

Discussion

Though proving a hostile work environment claim may be difficult, it does not seem impossible. It would largely be dependent on the degree of shaming, name-calling, or harassing the employee is experiencing. The employee subject to the hostile work environment would need to show that (1) the employee is medically exempted, (2) disability exempted, or (3) religiously exempted from receiving the vaccine. Of course, this showing would need to be at the employer-level and accepted by the employer. If the employer accepts and has documentation that any of the above protected categories have been triggered and the employee is experiencing adverse treatment for claiming a religious or medical exemption, there can be a claim of hostile work environment.

It is also worth mentioning that other discrimination claims and even claims for invasion of privacy may be triggered by these actions. Medical information and an employee’s medical history and health have long been protected in the workplace. If the employee can prove that a certain employee is being singled out for not receiving the vaccine and they belong to a protected category, there most certainly can be a discrimination and privacy claim based on protected status. 

Here, it becomes obvious that some employees have chosen not to receive the vaccine and instead must submit to weekly COVID testing. Testing employees is not illegal. The employee then bears the burden of refuting that the harassment or shaming is not due to an employee’s vaccination status, but rather the underlying reason for not receiving the vaccine. An employee’s COVID vaccination status is not protected medical information because there is a nationwide COVID vaccine mandate. The law itself that requires all workers to be vaccinated affects everyone equally and carves out exceptions for those who cannot or choose not to get it. Therefore the law itself is not discriminatory and the employee must go beyond this law to show that the discrimination is occurring for some other protected reason.

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