EEOC Issues Updated Guidance On Caregiver Discrimination
The federal Equal Employment Opportunity Commission (“EEOC”) recently released an update to its formal Guidance document on workplace discrimination against caregivers. The update – prompted by the COVID-19 pandemic – describes potential violations of federal discrimination law involving caregivers, particularly under Title VII of the Civil Rights Act (“Title VII”), the Americans with Disabilities Act (the “ADA”) and the Age Discrimination in Employment Act (“ADEA”).
Although the EEOC’s updated Guidance focuses on the pandemic, during which discrimination issues involving caregivers have become more acute, the EEOC explicitly based the update on “established policy positions” that apply to caregiver discrimination generally, irrespective of COVID-19.
The EEOC’s updated Guidance can be found here. Below is a summary of some of its key points.
Caregiver Discrimination: The Basics
An employee is not automatically protected from adverse action under federal law simply because the employee is a caregiver for a child or other family member. However, employers are prohibited from treating caregivers differently based on a protected characteristic, such as sex, pregnancy, sexual orientation, gender identity, race, religion, national origin, age, or disability. This principle applies whether the protected characteristic is that of the employee caregiver or of the person receiving care.
Additionally, in some instances – such as a leave taken under the Family and Medical Leave Act (the “FMLA”) to assist a sick family member – a caregiver may have a substantive right under the law to provide care.
Illustrations Of Caregiver Discrimination
Sex. Examples of prohibited discrimination based on sex include:
- Refusing to hire or promote female employees on the assumption that they are more likely to stay home and care for remote-schooling children or relatives with COVID-19;
- Basing work assignments on gender stereotypes. For example, an employer may not withhold from female caregivers challenging assignments that can lead to advancement or promotion, out of an assumption that they may have difficulty balancing caregiving with increased work responsibilities; or
- Denying caregiving leave to a male employee if an employer gives female employees such leave in similar circumstances.
Sexual Orientation/Gender Identity. In the realm of sexual orientation/gender identity, an employer may not take actions such as:
- Imposing caregiving-related requirements on employees in same-sex partnerships that do not apply to opposite-sex couples; or
- Refusing to grant caregiving leave due to the gender identity of the employee’s partner.
Race/National Origin. An employer may not take measures such as:
- Requiring an Asian employee who provides caregiver leave to supply additional proof of vaccination status because COVID-19 was first identified in Asia; or
- Denying leave to care for a cousin with COVID-19 on the basis that a COVID-19 variant was first identified in the cousin’s country of origin.
Disability. Employers likewise cannot discriminate based on an applicant’s or employee’s caregiving responsibilities for an individual with a disability, including:
- Refusing unpaid leave to care for a parent with “long” COVID-19 that qualifies as a disability, while approving unpaid leave requests for other personal issues;
- Declining to promote the primary caregiver of a child with a disability that worsened during the pandemic, on the assumption that the employee would not be as available or committed to the job due to his or her caregiving obligations; or
- Deciding not to hire an applicant based on expected increased costs resulting from a disability – for example, if an applicant’s wife has a disability that puts her at higher risk from COVID-19.
Age. The ADEA prohibits employment decisions based on assumptions that older caregivers need special treatment, or imposing different terms of employment on older caregivers. For example, an employer cannot require an older worker caring for a grandchild while the child’s parent has COVID-19 to accept a reduced schedule, out of an assumption that the employee lacks the stamina to perform his or her full work duties while caregiving.
Harassment Based On Caregiver Status. Finally, workplace harassment based on a protected characteristic may violate Title VII, the ADEA, or the ADA, depending on the nature and scope of the offensive conduct. Some examples in the caregiving context include:
- Disparaging female employees for focusing on their careers rather than their families during a pandemic;
- Criticizing or ridiculing male employees who take leave to care for a child quarantined after COVID-19 exposure;
- Asking intrusive questions or making offensive comments about the sexual orientation of a LGBTQ+ employee who requests leave to care for a spouse or partner who has COVID-19;
- Insulting Asian employees caring for family members because COVID-19 was first identified in an Asian country; or
- Questioning the dedication of employees caring for individuals with disabilities that place them at higher risk of severe illness from COVID-19.
Recommendations For Employers
As the EEOC’s Guidance underscores, employers should be sure to have up-to-date policies on workplace discrimination and harassment that contemplate the need for employees to provide care to family members. While caregiving issues have come to the fore due to the unprecedented need caused by COVID-19, these issues will remain even after the pandemic has fully subsided.
In addition, while the EEOC’s illustrations of caregiver workplace discrimination provide helpful guidance, employers are encouraged to contact experienced employment counsel whenever potential caregiver issues arise.
* * *
We will continue to provide updates as events warrant. In the meantime, please feel free to reach out to one of our experienced employment attorneys if you have any questions about the EEOC's Guidance.