This article is an extract from he Labour and Employment Disputes Review, 5th Edition. Click here for the full guide.
I Introduction
Early on in the pandemic, many employment lawyers predicted that disability accommodation relating to remote work would be at the forefront of covid-19-related litigation. This prediction came true, as plaintiffs raised disability discrimination claims stemming from an alleged failure to accommodate (including denial of remote work) in more lawsuits than any other covid-19-related claims. How does an employer know whether an employee can truly work in an effective manner from home given their job duties? Did allowing employees to work from home during the pandemic set a precedent for doing so after they could safely return to the workplace? These are questions that have led to litigation.
One set of issues that did not seem to be on the radar at the time were sex discrimination issues. The #MeToo movement was still impactful throughout business and world affairs, but many companies had responded with additional training on sex issues by the start of the pandemic. The Bostock2 decision extending Title VII protections to gay and transgender employees happened over the summer of 2020 – generating lots of talk and a flurry of policy updates – but most employers already had anti-harassment and anti-discrimination policies regarding gender identity and sexual orientation, whether properly categorised under the term 'sex' or not.
What very few saw...
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