On March 14, 2022 the EEOC issued new guidance regarding Caregiver Discrimination against employees or applicants who are caregivers, as it relates to the COVID-19 pandemic.1 Note that this guidance supplements, but does not appear to supplant, earlier Caregiver Discrimination Guidance from the EEOC.2 Although these documents are crafted with the pandemic in mind, employers should be mindful of these issues within the broader professional context, as well.
Taken together, these guidance documents explain that Caregiver Discrimination violates EEOC laws when it is based on:
- any protected characteristic under the laws the EEOC enforces, such as sex (including pregnancy, sexual orientation, or gender identity), race, national origin, disability, age (40 and above) or genetic information;
- associational discrimination, that is, the caregiver’s association with an individual with a disability, or other protected characteristic “of the individual receiving care;” or
- intersectional discrimination, or the intersection of two or more EEOC protected characteristics (e.g., caregivers of a certain sex and race).
The guidance includes concrete examples of what may constitute Caregiver Discrimination, including that under Title VII or the ADA employers may not:
- Decline to hire or promote a female employee, believing that “she would (or should) focus primarily on caring for her young children while they attend school remotely;”
- “[D]eny male employees permission to telework. . . to perform pandemic-related caregiving obligations. . .while granting such requests when made by similarly situated female employees;”
- “[I]mpose more burdensome procedures on LGBTQI+ employees who make caregiver-related requests, such as requiring proof of a marital or other family relationship with the individual needing care, if such requirements are not imposed on other employees who make such requests;”
- “[D]iscriminate against workers based on stereotypes or assumptions about workers’ caregiving responsibilities for an individual with a disability;” or
- “[S]ubject Asian employees with caregiving responsibilities to more scrutiny by requiring additional proof of Asian caregivers’ COVID-19 vaccination status. . .because COVID-19 was first identified in an Asian country.”
The guidance is clear that employees are generally not guaranteed reasonable accommodations such as telework or flexible schedules under federal law due to caregiving, with the notable exception that “employees who are unable to perform their job duties because of pregnancy, childbirth, or related medical conditions must be treated the same as other employees who are temporarily unable to perform job duties.” Nevertheless, the EEOC states that employers “may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics."3
At the same time, employers should also be mindful that even in an attempt to be benevolent, making employment decisions based on protected characteristics or stereotypes thereof, may still be impermissible discrimination. One example provided is “requir[ing] pregnant employees to telework or adjust their schedules to limit contact with colleagues, customers, or others whose COVID-19 or vaccination status may be unknown.”4 Another illustration of this is, when deciding whether to assign a project to a female employee that could potentially advance her career, but would require significant travel or overtime, declining to do so, believing this will make her life easier, knowing that she has “personal obligations.”5
The EEOC notes that if an employee’s caregiving responsibilities result in poor performance, employers do not need to excuse this behavior to be in compliance. However, employers must be careful to apply performance standards consistently, without differentiating “based on gender, race, association with an individual with a disability, or another characteristic or set of characteristics covered by federal employment discrimination laws.”
The guidance also covers harassment and retaliation in this context. Among other suggestions, one important step the EEOC recommends in preventing both harassment and retaliation is training employees in these issues.
In Section I, the EEOC notes that these caregiving protections apply to those who “care for children, spouses, partners, relatives, individuals with disabilities, or others.” The EEOC also uses Section I to link to other sections within this guidance document that addresses related issues.
Note that this blog post covers only the updated guidance from the EEOC, which enforces certain federal laws. Caregiving employees may also have rights under other federal laws that fall outside the EEOC’s jurisdiction, and many states and cities may have their own laws covering these issues as well, including here in New York State and in New York City. Additionally, the guidance points out that citizenship or immigration status discrimination “against workers with caregiving responsibilities” may also violate the law, under the Department of Justice’s jurisdiction.
Issues relating to caregiving employees can be very fact-specific and often require analyzing an employer’s obligations under a number of different laws, and we strongly encourage you to consult an attorney on these issues.
If you have any questions on how to stay compliant with federal, state or city law, please reach out to Lisa Feldman, any attorney in our Labor and Employment practice or the attorney at the firm with whom you are regularly in contact.
1 This update consists of two documents; (1) Section I on this page: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws; and (2) the caregiver discrimination guidance document available at this link: https://www.eeoc.gov/laws/guidance/covid-19-pandemic-and-caregiver-discrimination-under-federal-employment.
2 The EEOC links to these older documents within the new guidance, and they are available here:
3 “Employers also may wish to consider the challenges imposed by the pandemic on all employees, which may include expanded caregiving responsibilities, and determine whether, and under what circumstances, adjustments can be made to work schedules, meeting schedules, or other work-related tasks or events to enable employees to balance work and personal obligations without impairing performance or productivity.”
4 Note that “[p]regnant workers may have a right under Title VII to benefits such as modified duties, alternative assignments, or leave, and/or may have a right to reasonable accommodations under the ADA or the Rehabilitation Act.” See #8 for more information: https://www.eeoc.gov/laws/guidance/covid-19-pandemic-and-caregiver-discrimination-under-federal-employment
5 The guidance notes here that “if employees with caregiving responsibilities request work assignments that have a predictable schedule or that do not require extra hours or travel, employers may grant such requests at their discretion, as long as they do so in a nondiscriminatory manner.”