Wednesday, September 15, 2021

Coronavirus Update 9-15-21: Do mandatory vaccination policies have an adverse impact on minority employees?

With President Biden's announcement of his plan to vaccinate all employees of employers with 100 or more employees, the nation is keenly focused on workplace mandatory vaccination policies. This has led some to question whether the President's plan unlawfully discriminates against minority employees.

There is little doubt that vaccination rates among Blacks and Hispanics lags behind that of Whites (which isn't that great to begin with). At the latest count, only 43% of Black Americans and 48% of Hispanic Americans are vaccinated, compared with 52% of White Americans. The reason for this greater vaccine hesitancy within minority communities is understandable and well documented, particularly when the government is promoting or flat-out requiring the vaccine. See the Tuskegee Experiment (one of our nation's greatest embarrassments … and that's saying a lot).

All of this begs the question — is a mandatory vaccination policy discriminatory against Blacks and Hispanics. Or, more technically speaking, does such a policy adversely impact them?

"Adverse impact" is a theory of discrimination liability, when a facially neutral policy, practice, or rule disproportionately impacts a protected group. It's different than disparate treatment liability, which presupposes an intent to discriminate. With adverse impact, even though there is no unlawfully discriminatory intent, the policy, practice, or rule is nevertheless unlawful because of its statistically significant effect on a protected group over another.

A statistical analysis of the impact of mandatory vaccine policies on Blacks and Hispanics is beyond the scope of this space (or my own personal comfort level, for that matter). It's also unnecessary because business necessity acts as an affirmative defense to an adverse impact claim, even if there exists a statistically significant impact on a minority group. I have little doubt that a vaccine mandate meets that business necessity defense during a global pandemic that has already killed nearly 700,000 Americans and infected more than 42 million. 

Thus, to the extent Black or Hispanic employees seek to challenge any of the President's Covid vaccination plans based on some theory of workplace discrimination, that argument is doomed to fail because of the business necessity. 

But, that legal issue does not answer the practical problem of how we get more Blacks and Hispanics vaccinated. And that will involve a lot of conversational listening so that we understand and address their historical hesitancy. A mandate alone will not solve that problem or bridge that gap.

* Photo by Nadir sYzYgY on Unsplash