Do You Care? The EEOC Offers Guidance on Caregiver Discrimination and COVID-19

“Caregivers” (e.g. individuals who care for other family members) are not technically a protected class under current federal antidiscrimination law, but the Equal Employment Opportunity Commission has issued new guidance and updated its “What You Should Know About COVID-19” resource on when it believes that discrimination against caregivers may implicate Title VII and the Americans with Disabilities Act. This supplements previously-existing general guidance, a fact sheet, and best practices on caregiver discrimination.

When Does Caregiver Discrimination Violate the Law? According to the EEOC:

Caregiver discrimination violates federal employment discrimination laws when it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability, or genetic information (such as family medical history).  Caregiver discrimination also is unlawful if it is based on an applicant’s or employee’s association with an individual with a disability, within the meaning of the ADA, or on the race, ethnicity, or other protected characteristic of the individual for whom care is provided.  Finally, caregiver discrimination violates these laws if it is based on intersections among these characteristics (for example, discrimination against Black female caregivers based on racial and gender stereotypes, or discrimination against Christian female caregivers based on religious and gender stereotypes).

Examples of Discrimination. The EEOC gives examples of illegal discrimination against caregivers, including the following:

• Sex discrimination.
  • Refusing to hire or promote a female based on a belief that she would/should focus primarily on the care of children or parents.
  • Making assignments, particularly about demanding or high-profile projects, based on assumptions about a female caregiver’s ability to juggle work and personal obligations or to work extra hours.
  • Stereotyping men as breadwinners and women as caretakers, such that men are denied flexible schedules to handle caregiving duties or are refused requests for exceptions from return-to-work or attendance policies.
  • Demanding that LGBTQ+ employees, but not others, who make caregiver-related requests to provide proof of family relationship.
  • Denying caregiving leave based on the sexual orientation or gender identity of the employee or their partner.
• Pregnancy Discrimination.
  • Refusing to hire or promote or demoting pregnant employees based on assumption that they should be focused on their pregnancies, or allowing harassment of pregnant employees for taking precautions to avoid COVID-19 (e.g. physical distancing, schedule changes, teleworking).
  • Unilaterally making schedule changes or requiring telework of pregnant employees to protect them from COVID.
• Disability Discrimination.
  • Discriminating against employees based upon their association with the care recipient, such as by denying leave to care for a family member with a disability arising from long COVID while granting unpaid leave for other personal responsibilities, or refusing to promote an employee whose mental health disability worsened during the pandemic based on the assumption they would not be fully available to work, or refusing to hire an individual out of fear of increased insurance costs for a spouse who is at higher risk of severe illness from COVID.
• Race/National Origin Discrimination.
  • Applying different standards to employees (with caregiving responsibilities) of one race but not another, such as by requiring proof of vaccination, or denying leave based on the fact that the care recipient is from a country with a recently-identified variant.
• Age Discrimination.
  • Basing employment decisions, or imposing different terms and conditions of employment, based on age or age-related stereotypes, such as assuming that an older worker who must care for a grandchild whose parent has COVID lacks the stamina to balance the job and caregiving.
• Intersectional Discrimination.
  • This is discrimination based on the intersection of two or more protected characteristics, such as denying caregiving leave to male Native American employees while granting it to female Native American employees or those of other races/national origins.

Harassment. The EEOC provides examples of harassing conduct related to caregiving responsibilities, including:

• Disparaging female employees for focusing on their careers rather than their families.
• Accusing female employees of being preoccupied with their families and distracted from their jobs.
• Criticizing male employees for caregiving activities.
• Asking intrusive questions about an employee’s sexual orientation in connection with a leave request to care for a partner.
• Insulting Asian employees caring for family members with COVID because COVID was first identified in an Asian country.
• Assigning unreasonable amounts of work or imposing unrealistic deadlines on employees of color because they requested caregiving leave.
• Questioning the professional dedication of employees caring for individuals with disabilities or mocking them for taking pandemic precautionary measures.
• Stating that older employees should be receiving care, not providing it.

The EEOC suggests preventive measures such as periodically distributing harassment policies and complaint procedures to all employees, posting such documents on-site and online, training employees on these policies and procedures, and demonstrating leadership’s commitment to a harassment-free workplace. Employers should also apply their harassment policies consistently and in a non-discriminatory fashion, respond promptly to harassment-related questions/concerns/complaints, and take prompt and effective corrective and preventive action.

No Reasonable Accommodations Required. The EEOC notes that there is no right to reasonable accommodations (e.g. telework, flexible schedules, reduced travel or overtime) under federal antidiscrimination laws based strictly on caregiver status. But they may be entitled to leave under the Family and Medical Leave Act and similar state/local laws.

Also, those who are unable to perform their job duties because of pregnancy and childbirth must be treated the same as other employees who are temporarily unable to perform their job duties. And they may be entitled to accommodations under the ADA or state law if they have pregnancy-related disabilities.

Performance Standards May Be Enforced. Employers are not required to excuse poor performance associated with caregiving duties, as long as the standards are applied consistently.

No Retaliation. The EEOC emphasizes that employers are prohibited from retaliating against employees for exercising their rights under the anti-discrimination laws, such as by making complaints, participating in investigations, or reasonably opposing conduct they believe to be discriminatory. Examples of retaliation include the following:

• Refusing to recall an employee from furlough because they made a pregnancy discrimination complaint.
• Changing an employee’s schedule to conflict with school drop-off and pick-up times because she participated in a discrimination investigation.
• Transferring a manager who cares for a family member in a local assisted living facility to a distant office because they refused to obey a discriminatory order.

The EEOC offers suggestions to prevent retaliation, such as by training managers on their obligations under federal anti-discrimination laws (including non-retaliation), notifying complainants/participants of their right to non-retaliation and what to do if they experience retaliation, and taking appropriate preventive and corrective action if retaliation occurs.