By Gregg E. Clifton & Andrew M. Gaggin, of Jackson Lewis P.C.
Despite the ongoing changes to the workplace in response to the COVID-19 pandemic, one thing remains unchanged: federal EEO laws and their role in the workplace.
As colleges and universities and professional sports organizations make plans for the resumption of play in the next couple of months, university presidents and league officials must address their athletes’ ongoing safety concerns as they return to training environments in anticipation of resuming play. The need to protect the health and safety of current coaching and administrative staff members who may be older is another challenge. They may be at an even higher risk for a severe case of COVID-19 because of their age or underlying health conditions.
The perceived need to protect this group of potentially vulnerable employees has raised many questions. One question is how to balance protecting high-risk individuals — especially older workers — while respecting their individual rights under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).
Attempts to protect older employees may actually expose employers to charges of discrimination and lawsuits.
The Centers for Disease Control and Prevention (CDC) has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus. Therefore, the CDC has encouraged employers to offer maximum flexibilities to this group. These employees retain their protections under the federal employment discrimination laws even during the COVID-19 pandemic. For academic institutions and their athletic departments and professional franchises, this means an extra step when considering policies specifically designed to protect older employees, including coaches and support staff.
The Equal Employment Opportunity Commission (EEOC) has asserted that employers should not enact policies or procedures that disfavor older employees, even one intended to protect older employees from COVID-19.
In its Frequently Asked Questions series, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, the EEOC warned that, under the ADEA, a covered employer cannot exclude an individual from the workplace based on being 65 or older, even if the employer acted for benevolent reasons, such as protecting the employee due to higher risk of severe illness from COVID-19. Forcing employees age 65 and older to stay home while allowing other, younger employees to return to work violates the ADEA. Instead, the EEOC suggests that employers apply restrictive precautionary measures uniformly to all employees. Employers should not single out older employees to work from home, work in a separate area of the office or facility, take breaks at different times, undergo extra screening or testing, or any other COVID-19-related precautions not required of all employees.
However, employers may provide additional flexibility to workers age 65 and older. The ADEA does not prohibit treating higher-risk individuals more favorably, even if it results in younger workers (including workers ages 40-64 otherwise protected by the ADEA) being treated less favorably based on age in comparison. For example, providing employees age 65 and older the choice to work remotely would not violate the ADEA, even if the same choice is not offered to younger employees.
Professional sports leagues are already attempting to deal with this challenge. For example, NBA Commissioner Adam Silver suggested that older coaches would not be forced to stay home but may not be able to sit with their teams on the sidelines during games. Such a policy likely would violate EEOC guidance and prevent some high-profile coaches (including the San Antonio Spurs’ Gregg Popovich, 71, and the Houston Rockets’ Mike D’Antoni, 69) from coaching their players up close.
However, several NBA coaches (including New Orleans Pelicans coach Alvin Gentry, 65, and Dallas Mavericks coach and president of the NBA Coaches Association Rick Carlisle, 60) were critical of Silver’s suggestion. Gentry, for example, told ESPN he does not think older coaches should be “singled out,” and Carlisle noted it is possible for an older NBA coach to be healthier than a younger coach, and “the conversation should never be solely about a person’s age.” Their reactions, and the EEOC’s new guidance, illustrate how complicated these policy decisions can be for employers, especially when dealing with athletes and competitors at any age.
While the push to resume sporting events during an ongoing pandemic is understandable (including the significant financial considerations and returning to some normalcy for athletes, coaches, and fans), employers should avoid using age or other protected characteristics as considerations when returning coaches, staff, and other employees to work, as even the intent to protect older employees can inadvertently result in violations of the ADEA.
Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice. Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.
