The Equal Employment Opportunity Commission (EEOC) has released new guidance on caregivers, addressing potential issues that could result in discrimination claims against employers based on caregiver responsibilities.
The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law technical assistance document explained that although “caregiver” is not a protected status, workers and applicants with caregiving responsibilities may have rights under other laws, and in the post-COVID-19 workplace, many employees are seeking more flexible arrangements for caregiving purposes.
Discrimination against applicants or employees with caregiving responsibilities can violate federal equal employment laws when based on a protected characteristic such as sex (including pregnancy, sexual orientation or gender identity), race, color, religion, national origin, age (40 or older), disability or genetic information, the EEOC said.
The pandemic has increased awareness of the issue of caregiving responsibilities, as many employees needed adjustments to work schedules and location due to quarantine requirements or the closures of schools and child care facilities.
“As the pandemic evolves, and the country moves to a new normal, we cannot assume caregiving obligations have ended,” EEOC Chair Charlotte A. Burrows said in a statement. “The work that caregivers do—whether as employees or as unpaid workers in the family—is in all of our interests. By ensuring that caregivers know their rights and employers understand their responsibilities, the EEOC will help ensure that America’s recovery from the pandemic is an equitable one.”
The technical assistance document includes examples of possible pandemic-related discrimination against caregivers to help guide employers.
It would be illegal if an employer refused to hire an applicant who is the primary caregiver of an individual with a disability who is at higher risk of complications from COVID-19 out of fear that the employer’s health care costs would increase, the agency said. It would also be unlawful for an employer to refuse to promote a woman based on assumptions that—because she is female—she would focus primarily on caring for her children while they quarantined or attended school remotely.
The EEOC provided several examples of harassing conduct related to caregiving responsibilities that could contribute to an unlawful hostile work environment, ranging from disparaging female employees for focusing on their careers rather than their families during the pandemic to ridiculing male employees for performing caregiving duties for a quarantining child based on gender stereotypes of men as breadwinners to asking intrusive questions or making offensive comments about gay or lesbian employees’ sexual orientation after they request leave to care for a same-sex spouse or partner.
Employers are not required to excuse poor performance if it results from caregiving responsibilities during the pandemic, according to the guidance, but may not apply performance standards inconsistently to employees based on gender, race, association with an individual with a disability or another protected characteristic.
“For example, employers may not penalize Hispanic employees for missing meetings while supervising their children’s virtual school attendance or taking relatives to medical appointments, while overlooking such conduct by employees of other ethnicities,” the EEOC said.
Different standards or processes for pandemic-related caregiving requests based on employees’ or care recipients’ race or national origin are also prohibited, the agency noted. Employers would run afoul of federal law by denying an employee’s request for leave to care for a cousin from another country who was recently diagnosed with COVID-19 because a variant was first identified in the cousin’s country of origin, according to the guidance.
Pregnancy discrimination may also arise in a variety of ways, the EEOC cautioned. It would be unlawful for an employer to refuse to hire pregnant applicants on the assumption that the woman should be focused on ensuring a safe or healthy pregnancy. It would also be unlawful for an employer to allow employees to routinely harass pregnant coworkers for taking actions to avoid exposure to COVID-19, such as maintaining a physical distance or teleworking.
To read the new EEOC guidance, click here.
Why it matters: Although federal law does not prohibit employment discrimination based solely on caregiver status, employers should recognize the potential for discrimination against employees with caregiving responsibilities based on protected characteristics, as well as under broader state and local laws. California employers should also be aware of Assembly Bill 2182, which would add “family responsibilities” as a protected class under the state’s Fair Employment Housing Act. If enacted, the measure would prohibit employment discrimination based on family responsibilities and would require employers to make reasonable accommodations for the known family responsibilities of an applicant or employee related to specified obligations.