Dan O’Donnell analyzes a potentially overlooked problem with President Biden’s proposed vaccine mandate: It may have a disparate and unlawful impact on minority workers.
September 15, 2021
Perspective by Dan O’Donnell
President Biden has since his very first day in office prided himself on his administration’s steadfast commitment to diversity and inclusion. On Inauguration Day, in fact, he even signed the highly publicized “Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.”
“Equal opportunity is the bedrock of American democracy, and our diversity is one of our country’s greatest strengths,” the order began. “But for too many, the American Dream remains out of reach. Entrenched disparities in our laws and public policies, and in our public and private institutions, have often denied that equal opportunity to individuals and communities.”
“It is therefore the policy of my Administration that the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.”
How ironic, then, that it is entirely possible that Biden’s most recent executive action mandating vaccines in the workplace could fail because it adversely affects people of color.
Title VII of the 1964 Civil Rights Act provides that it is “an unlawful employment practice for an employer to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
In 1971, the United States Supreme Court held in the landmark case Griggs v. Duke Power Co. that “practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.”
This established the concept of “disparate impact” in employment law: Even if there is no discriminatory intent behind a particular rule or job requirement, it can be discriminatory in practice if it has a dramatically greater impact on members of a particular racial, ethnic, religious, or gender group.
Since Griggs, courts have established a three-part test to determine if the disparate impact of a policy is unlawful:
- Does the policy create an adverse effect on members of a protected class?
- Is it manifestly related to the duties of the job or is it a business necessity?
- If it is, could the goals of the business be achieved without a policy that has an adverse effect on members of a protected class?
The Biden Administration’s policy forcing employers with 100 or more workers to mandate COVID-19 vaccination or require unvaccinated workers to undergo weekly COVID testing will undeniably have a disparate impact on racial minorities and, since it is obviously not a “business necessity,” it does not comply with Title VII.
“Black and Hispanic people remain less likely than their white counterparts to have received a vaccine,” the Kaiser Family Foundation noted in its most recent report on the demographics of COVID vaccination, adding that “as of September 8, 2021, CDC reported that race/ethnicity was known for 59% of people who had received at least one dose of the vaccine. Among this group, nearly two thirds were white (60%), 10% were black, [and] 17% were Hispanic.”
Across the country, 52% of the eligible white population is vaccinated, compared with just 43% of the eligible black population and 48% of the Hispanic population.
“In the District of Columbia,” Kaiser adds, “black people have received 44% of vaccinations, while they make up 56% of cases, 71% of deaths, and 46% of the total population. In California, 31% of vaccinations have gone to Hispanic people, while they account for 61% of cases, 47% of deaths, and 40% of the total population in the state.
In Wisconsin, the Department of Health Services (DHS) notes that “vaccination rates are lower in communities of color.”
“The highest disparities of vaccination rates exist in Black and Hispanic communities, where black residents are 40 percent (0.6 times), and Hispanic or Latinx residents are slightly less (0.8 times) as likely to be vaccinated compared to white residents.”
Any requirement that all people be vaccinated as a condition of employment would clearly have a greater impact on black and Hispanic workers and, troublingly, the Biden Administration has known for months that the black population in particular would be especially hesitant to be vaccinated.
“There is a righteous skepticism if you know history,” Vice President Kamala Harris told MSNBC’s Al Sharpton in February, referencing the notorious Tuskegee Experiments to explain black hesitancy to receive a new vaccine. “We must speak truth about the history of medical testing in this country. We must be honest about the fact that people have a righteous skepticism about how it has been used, how it has been tested, and on whom it will be used.”
As the push to mandate vaccines gained steam over the summer, the Equal Employment Opportunity Commission (EEOC) warned that “employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”
Once this guidance was issued, employment attorneys acknowledged in the National Law Review that “because of these disparate impact concerns, employers may be required to respond to allegations that a facially-neutral, non-discriminatory COVID-19 vaccination requirement constitutes a disparate impact on a protected group, such as minorities.”
Making such an employment requirement even more legally problematic is the fact that it is mandated not by a private employer, but the federal government, which has been admitting for months that vaccine mandates could potentially lead to a disparate impact on minority employment.
Even the Biden Administration’s attempt at softening the mandate—an alternative requirement that the unvaccinated take weekly COVID tests—would place a disparate burden on minority employees who would be forced to either pay for home tests or pay to travel to free testing sites. Even with an employer reimbursement, the employee must take time out of his or her day to be tested; a burden that a vaccinated employee does not carry.
Because that burden is far more likely to be borne by employees of racial minority groups, it fails the first prong of the three-part test for an unlawful disparate impact.
Since a vaccine mandate or weekly testing for employees is neither a business necessity nor expressly related to the duties of employment for the vast majority of employers covered under Biden’s vaccine mandate, it fails the second prong of the disparate impact test as well.
Businesses have successfully reopened and have stayed open for more than a year without requiring workers to submit to weekly tests. Once vaccines became widely available in the Spring of 2021, those same businesses were able to stay open without requiring their employees to be vaccinated. That didn’t suddenly change in the past week.
Even if the Biden Administration could demonstrate that a vaccine mandate is a necessity for businesses to stay open safely, its goals could be achieved without a policy that creates such a disparate impact.
The goal of vaccination, of course, is to prevent the spread of COVID-19. This could rather obviously be achieved by allowing those workers who decline the vaccine to work from home or some other remote location. They would not have to get vaccinated or submit to weekly tests if they do not come into contact with other workers or customers, yet Biden’s proposed mandate does not allow employers to work out this possibility with their employees.
Those employees must submit to either vaccination or testing or lose their jobs. Since, statistically speaking, a significantly greater percentage of those employees are likely to be members of racial minority groups, this requirement will have a disparate impact on them, as they are far more likely than their white counterparts to be fired because of it.
As a result, Biden’s employer vaccine mandate may well violate Title VII and, ironically enough for a man who has fashioned himself as America’s wokest president, infringe on the civil rights of minority workers.