Mediating Employment Disputes: Between a Clock and a Hard Case

The COVID-19 pandemic has forced companies across all industries and around the globe to recognize that there are differences in how their employees live and thrive. The barriers to an equitable work environment are being discussed and addressed to consider ways to better foster inclusivity in company culture. Structural racism is an underlying constant in these discussions. The diversity, equity and inclusion awakening has brought many disparities to light. Although the pandemic has challenged almost everyone in some way, minorities face different challenges, which are oftentimes amplified due to lack of personal and professional resources.

Common Threads

Mediations are being used to pull on the thread to unravel disparate realities and underlying causes. Many recent employment cases involve corporate policies regarding vaccinations. Those most affected by these policies are minorities, specifically those living in underserved communities. Statistics show that residents of these communities don’t trust COVID vaccines for a variety of reasons, but they need to keep their jobs in order to feed their families. There is also the overlapping issue of these same people having less access to quality health care and mental health resources at a time when, for some, these services are needed more than ever before. Virtual or hybrid working arrangements are reportedly not being considered in a way that accounts for employees who live in marginalized communities (support and administrative staff) across industries. In many cases, these employees travel farther to get to work, sometimes on public transportation, and they have to pay (the same) high child care costs. They need to work and can’t afford after-school care, so they rely on family to defray the cost of child care. Additionally, these employees tend to have jobs that are not computer-based, so they cannot perform them remotely.

Equality and Access

The U.S. Equal Employment Opportunity Commission (EEOC) recently released updated guidelines that allow employers to mandate vaccinations in the interest of creating a safer workplace environment. There are exemptions for employees who have certain religious beliefs or qualifying medical conditions outlined by the Americans with Disabilities Act. The exemptions apply unless granting the exemption would cause an undue hardship on the employer under Title VII of the Civil Rights Act. The EEOC’s guidelines prioritize public safety over an individual’s choice to be vaccinated. Work environments affect homes; homes affect communities; communities affect the world. While the effects of the COVID-19 pandemic can be seen all over the world, there are disparities in access to resources and health care in underserved communities. For many alternative dispute resolution (ADR) providers, providing equal access to justice means considering and acting upon diverse interests. It also means building resources around courts’ ADR programs to foster an environment of trust.

Responsibility

In my conversations with colleagues and in publications, it is reported that across industries, companies are bringing employees back to the office in waves. Many employers are making accommodations for employees with underlying health conditions. Some companies have dropped their mask mandates as well as their vaccine mandates, but there are risks associated with these decisions. The overarching guidance is focused on how to accommodate the fear of returning to work, as well as the reality that COVID is so unpredictable and contagious. Employers have obligations and responsibilities to their employees and to the public. Having employees who are infected and/or spreading infections can be a source for increased virus transmission in the community. Employers’ responses to these challenges are likely to be seen, in some cases, as retaliation, and there is a recent rise in these allegations.

Realities

There are disparate conditions that exist in marginalized communities that can create a snowball effect when employment (and other) instability is in play. There seems to be job insecurity in some industries, yet many businesses are short-staffed. This is an odd reality. Responses to the needs of employees and customers are ever-evolving. In the hospitality industry, for instance, even in large hotel chains, staff must balance cleaning rooms according to COVID protocols with the expectations of guests. Some guests may prefer only to have their towels changed out, while others may want a full room cleaning each day. The restaurant industry is experiencing its own challenges. Owners, especially those of smaller establishments, are having difficulty getting some of the ingredients they need to prepare their offerings. This has caused menu revisions and, in some cases, changes to hours of operation. This has a domino effect on staffing, as fewer hours open means fewer staff needed. Single-parent households and those who live in poorer communities are more susceptible to the effects of this situation.

It seems that the more we learn about the coronavirus, the more we see that there is still much we do not know. With regard to the endemicity of COVID (it is here to stay), experts agree that there is no way to know when we might reach herd immunity or how the virus will evolve.

Rebekah Ratliff is a JAMS mediator, arbitrator and neutral analyst. She specializes in complex commercial insurance, commercial business, construction and employment matters. She is based in Atlanta and offers in-person and virtual dispute resolution services worldwide.

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Bio: www.jamsadr.com/ratliff/