That’s the pandemic “cover” under which some companies seek to shelter discrimination, said Minneapolis attorney Joni Thome. Her firm receives a number of calls from suddenly unemployed workers. “It is reminiscent of 2007-2008 where businesses used the economy as an excuse [to terminate employment], she said.
COVID is still creating issues in the workplace, especially where employees have been absent due to illness, Thome said.
It does appear that the effects of long COVID are on their way to being considered a protected class for purposes of disability discrimination, she added. Long COVID is defined by the Centers for Disease Control and Prevention as lasting more than four weeks. The EEOC has issued guidelines on how and when COVID effects would qualify as a disability under federal law. The Department of Justice and the Department of Health and Human Services issued “Guidance on ‘Long COVID’ as a Disability Under the ADA.”
The Minnesota Human Rights Act is interpreted broadly and to date employers are not pushing back much on accommodating long COVID symptoms, Thome said.
The firm is also seeing an “uptick in general bigotry” resulting in more race inquiries, Thome said. Part of that is the ubiquitous white nationalism of recent years, and part of that is more people not afraid to see racism, she said. “It feels like people have been seeing racism differently and are more able and willing to just say it,” she said.
Thome sees issues with racism and how courts and attorneys are going to value cases of discrimination based on race or natural origin. “There are certainly a lot of credible discoveries that those cases have their own ‘special category’ of damages based on trauma and re-trauma,” she said.
In 2021, Thome and her partner Shawn Wanta tried a case in Hennepin County to a masked jury. The plaintiff received a verdict for $56,000 plus attorney fees for retaliation over seeking work comp benefits.
“We got better at reading eyes and body language. We knew who was listening,” she said.