DISCRIMINATION ON THE RISE IN THE WORKPLACE AS WORKERS RETURN TO JOBS AFTER PANDEMIC
By Sherry Stevens, Editor
It’s an Employer’s Market
New Town, ND – With the onset of COVID-19 in March 2020, people across the nation as well as residents of
the state of North Dakota, and citizens of the Fort Berthold Indian Reservation saw extreme changes in their employment and job duties as a response to mitigation efforts to slow down and prevent the spread of the deadly infection. With COVID testing measures expedited, the quarantine isolated and each county, state and nation’s efforts to stabilize and contain it, folks are likely wanting to get back to work. If the trend continues and the numbers don’t continue to spike, it looks like this return may come in the next few weeks. Unfortunately, some job positions have since been absorbed, removed, or canceled altogether.
Our country is seeing an economic phenomenon known as the ‘Employers Market.’ As employees are challenged to perform at their best, employers have the option to ‘take their pick’ and, of course, in these conditions, bias and discrimination in the workplace can easily follow.
Employees Laid off as Businesses Struggle to Adapt to Virus Directives
Not only were schools wholly shut down, but government buildings were closed, private businesses were not allowed to serve customers in their diners, outlets, markets or foyers, and as a result, many employees lost their jobs and were displaced. For those
workers who were fortunate enough to qualify for unemployment benefits, the state of North Dakota, through federal funding of the Cares Act, added a PUA (Pandemic Unemployment Assistance) benefit of six hundred dollars each week, to the general entitlement. This move allowed employees and independent contractors to receive as much as 832 dollars per week and for several months now.
Only governmental and private sector employees who were deemed as ‘Essential,’ according to each state and Tribal Nations’ characterization, were allowed to continue to work through the height of the COVID Pandemic. Unless these workers were classified as ‘healthcare’ or ‘frontline’ workers, most performed their job duties from home.
Essential Employees Continue to Work Through the Pandemic
As we’ve watched mitigation directives loosen in recent months, our communities have shifted to accommodate home-based ‘essential’ employees who must return to the workplace. Those directives are met by continuing to social distance, mask-wearing, hand sanitizer, and the ‘six-foot’ rule, among other instructions, including personnel limits in meeting rooms, etc. However, for many workers who were not deemed ‘essential’ and currently receiving unemployment benefits, there is also a concern about returning to work and reentering the workplace as these benefits wind down.
The North Dakota Labor Industry is likely finding a considerable upswing in job searches online and across the state – this includes those searches by local families on the Fort Berthold Indian Reservation.
Oil Industry Takes a Broad Hit
The nation’s economic climate was also crushed with an oil war in March, April, and May, which pre-cursed an orchestration of a steely price war between the foreign nations of Russia and Saudi Arabia. This bid led to even higher numbers within the state of North Dakota as many of the industry’s wells were shut down and workers sent home. Again, unemployment numbers rose.
Police kill an Innocent Man, and the Racial Tensions Continue to Rise
A racial, social issue also came to light for many unwitting Americans who watched in horror on television and videos played on social media as the tragic and senseless death of George Floyd, unfolded before their eyes. Many watched and listened as the audio played his words, a cry out for help at the knowledge he was dying at the hands of a Minnesota Police Officer. This officer, had a performance record reflecting at least 18 incidents of similar events that were noted but not correctly followed up on by his direct authorities.
BLM Steps in to Make a Statement by Protest and Holds Police Accountable
The American people became outraged about this event, causing an uproar across the nation by private citizens, protestors, and advocates alike. These efforts were further advanced by the Black Lives Matter Movement (a decentralized movement with 16 chapters in the U.S. advocating for non-violent civil disobedience in protest against police brutality incidents and all racially motivated violence against African American people). These were efforts to bring law enforcement to task and stop the violence and death by police officers in the African American communities and neighborhoods where a simple arrest became a tragic and foreseeable death. Our nation watched and soon activated resources to rise to the challenge of spreading the word, despite pushback from others who objected and continue to allege no harm.
Where are We Now? How Do We React if We Suspect Discrimination in the Workplace?
With the Pandemic in the forefront, the economic crash of the oil industry, and a racial-social movement underway, it would only fall in line that many individuals now returning to work are feeling effects from the racial tension in recent events. They also may have discrimination issues on their front minds, including the question, “How do I avoid discrimination against myself or others in the workplace?” As well as, “What steps can I take to not only prevent against discrimination, but to help navigate through the system once discrimination and a resulting harm has been detected?”
The best answer is, “When you have ever felt the awful sting of discrimination in an employment setting, contact legal counsel immediately to advise you on your rights and legal remedies. An attorney will help you to take immediate steps to prevent further harm. Consulting legal counsel is the best way to understand what constitutes discrimination vs. dealing with an unsavory employer (or perhaps, both).”
Many types and Methods of Discrimination:
According to EEOC (Equal Employment Opportunity Commission):
There are many examples and methods of discrimination, including:
Systematic, which is a practice to provide barriers in recruitment and hiring; discriminatorily restricted access to management trainee programs and to high-level jobs; exclusion of qualified women from traditionally male-dominated fields of work; Disability discrimination such as unlawful pre-employment inquiries; And Age discrimination in reductions in force and retirement benefits. More than can be covered in this article so please reach out to the EEOC for more information (see the end of this article for contact information)
Ignorance is Not an Excuse When it Comes to Matters of Discrimination and ‘At-Will Employment’ is Not Always What it Sounds Like:
However, there are a few guidelines to follow, and if you are a Manager over others in any context, these are some important rules of thumb to keep in mind:
Sometimes you will hear an employer or coworker say, “This is a right to work state.”
Well, this doesn’t mean much if you’re not facing a proposition of unionization, and you’re not questioning your right not to pay union dues. Most likely, they mean, “This is an At-Will Employment state which is a term used in U.S. labor law for contractual relationships in which an employee can be dismissed by an employer for any reason, without warning, as long as the reason is not illegal. Most states are, in fact, At-Will, so this is not alarming.
The difference is, there are many exceptions to this ‘At-Will’ position, and states vary as to what specific exceptions are contrary to the At-Will firing by the employer or the act of At-Will quitting by the employee.
What’s Considered Illegal?
Let’s visit what may be deemed as Illegal, first. Again, it is imperative to seek legal counsel on this issue because the word illegal has a broad definition and may encompass something as simple as your employer asking you to hide money or as complicated as the case where your employer has discriminated against you.
Discrimination may be based on race, gender, national origin, sexual orientation, age, pregnancy, religion, disability, or gender selection. These rights are all considered to be fundamental and protected by our federal, state, and sovereign nation’s constitutions.
Jurisdictions: State, Federal and Sovereign
However, there are exceptions to these protected classes regarding a sovereign nation’s ability to place a preference, for example – national origin – as a preference in hiring. This exception to federal law is because a particular preference in sovereign law is desired and is a fundamental part of the hiring process. Therefore, each case may be further complicated by a multi-layering of rules in place. An attorney’s counsel specializing in practicing law within that particular jurisdiction of wherever the harm took place, should generally be sought. Sovereign preference laws are meant to enable and support the employer and employee alike, and their enaction does not have an effect of discrimination. In fact, it serves the opposite.
However, in federal and state venues, there may be actions of discrimination as to national origin, etc. and these actions, if found to be accurate, are in themselves, probably deemed illegal and should be presented to a person with proper authority (an attorney) who can advocate for your rights.
An Exception to the Rule: A Contract Cancels ‘At-Will’ Employment Relationships:
A contract between the employer and employee cancels out the ‘At-Will Employment’ relationship and now transforms it into a higher standard. The courts now would likely require a ‘for just cause’ to suddenly quit or terminate the employment. (Again, seek legal advice as this varies from jurisdiction to jurisdiction).
Is My Employment Contract Implied or Express?
When people think of contractual relationships, many times, they think in terms of a written instrument, but this is not always accurate. An employer may imply a contract through verbal statements or actions by the employer or the employee, such as an ‘offer letter’ or ‘relocation requirement.’ Factors such as reliance and costs to the person relying on the words and the actions of the other party, may come into play. It’s a complicated process of sifting through statements and facts to discern what was intended at the time of hire.
Get an Offer Letter of Employment Spelling Out your Expectations – Whenever Possible
Employment security during economic hardship, is why it’s best to get an offer letter at the time of hire and to document your interactions and expenditures if you believe you may not be treated right or see problems with an employer/employee in the horizon.
Don’t Remain Silent – It’s Not Your Fault. Don’t React in Anger or with Unsolicited Explanations
The worst mistake a person can do if they feel discriminated against is to remain quiet. Discrimination is like an insidious disease, and it will grow in the dark if a light is not shed onto each case as soon as it arises. The second worst mistake a person can make is to get upset and retaliate against the employer, quit in the heat of the moment, or blame oneself for this maltreatment. If you do get upset and show this to your employer, you have now focused on something other than the actual problem of discrimination. This show of emotion can make it more challenging to sort-out any covert actions of discrimination or harassment you have been suffering in the workplace.
Many of us have already faced discrimination in the workplace, at least to some degree, and the reality of it is that although it is quite shocking, the recourse for finding relief is difficult. We have to be brave to rectify its ugly existence. Thankfully, the process is quite straightforward, and it bears a very low tolerance for the actual act of discrimination.
Don’t Retaliate – It’s a ‘Thing.’
However, of all the discriminatory factors listed above also considering lawsuits and legal complaints filed by employees have been exploding across the nation in the last ten years, note that the number one type of job discrimination complaint order filed by employees is based upon RETALIATION. According to the Fiscal Year (2019) data, it reflects that retaliation continued to be the most frequently filed charge with the [EEOC] agency, followed by disability, race, and sex.
Be Vigilant and Know Your Worth and Rights
Hopefully in the face of these recent health, social and economic challenges, we have learned something about protecting ourselves against the reprisal of situations whether they be governmental, industrial or environmental which could render us beyond all reprieve from those factions we cannot control but which are set right in front of us. Discrimination is not something people like to talk openly about, but it’s something that exists, and in recent months, we have seen the positive outcome which follows speaking out about it.
Where Else Can I Find Information?
U.S. Equal Employment Opportunity Commission. You can visit the EEOC website for general information @ EEOC.GOV
If you are concerned about your treatment at work, you can visit EEOC for more information https://www.eeoc.gov/discrimination-type
If you are in a union, your union representative should also be able to help you with discrimination advice.
If you think you might have been mistreated and want further advice, you can contact the EEOC at [email protected]
For Deaf/Hard of Hearing callers: 1-800-669-6820 (TTY)You can email using [email protected]