Washington, DC (WorkersCompensation.com) – With remote and hybrid work – as well as school closures and quarantine – likely here to stay as part of the new normal emerging from the COVID-19 pandemic, caregiver discrimination has landed on the Equal Employment Opportunity Commission’s radar.
To keep up with the shifting state of workplaces, the EEOC recently released technical assistance to explain what caregiver discrimination is and how employers can avoid committing it, focusing on gender, pregnancy, sexual orientation, disability, and other categories.
Along with guidance the EEOC issued, the technical assistance breaks down topics in a Q & A format, focusing on employer responsibilities. The following information highlights the technical assistance’s key points.
The basics. 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.
Unlawful discrimination against females with caregiving responsibilities. It would violate the law if an employer refused to hire a female applicant or refused to promote a female employee based on assumptions that, because she was female, she would or should focus primarily on caring for her young children while they attend school remotely, or on caring for her parents or other adult relatives. Employers also may not penalize female employees more harshly than similarly situated male employees for absences or missed deadlines due to pandemic-related caregiving duties.
Males. It is unlawful for employers to discriminate against male caregivers based on their gender or based on gender stereotypes of men as breadwinners and women as caretakers. For example, it would be unlawful for an employer to deny men leave or permission to work a flexible schedule to care for a family member with COVID-19 or to handle other pandemic-related caregiving duties if the employer grants such requests when made by similarly situated women.
LGBTQI+. It is unlawful for employers to discriminate against LGBTQI+ applicants and employees with caregiving responsibilities based on their sexual orientation or gender identity. Employers also may not deny caregiving leave to an employee with a same-sex partner based on the sexual orientation or gender identity of the employee or the employee’s partner.
Pregnancy discrimination. It would be unlawful for an employer to refuse to hire pregnant applicants, or to demote or refuse to promote pregnant employees, based on assumptions that these individuals will or should be primarily focused on ensuring safe and healthy pregnancies. It also would be unlawful, for instance, for an employer to allow employees to routinely harass their pregnant co-workers for maintaining a physical distance from colleagues, changing their schedules, teleworking, or taking other actions to avoid being exposed to or infected with COVID-19.
Additionally, employers may not unilaterally require pregnant employees to telework or adjust their schedules due to COVID-19.
Accommodations for pregnant workers. Under Title VII, if employers provide light duty, modified assignments or work schedules, or leave to employees who are temporarily unable to perform job duties, they must provide these options to employees who are temporarily unable to perform job duties because of pregnancy, childbirth, or a related medical condition.
Pregnancy is not a disability under the ADA or the Rehabilitation Act, but some pregnancy-related medical conditions may be disabilities under those laws. Pregnant employees with such disabilities are entitled to reasonable accommodations, if needed to perform essential job functions and if the accommodations would not pose an undue hardship (significant difficulty or expense) for their employers.
Individuals with a disability. Applicants and employees with caregiving responsibilities for an individual with a disability, which may include some individuals with COVID-19 or lingering symptoms, are protected from discrimination based on their association with the care recipient. For example, it would be unlawful under the ADA or Rehabilitation Act for an employer to refuse an employee’s request for unpaid leave to care for a parent with long COVID, while approving other employees’ requests for unpaid leave to handle other personal responsibilities. Depending on the circumstances, this also may violate the Family and Medical Leave or state or local laws.
It would also be unlawful for an employer to refuse to promote an employee who is the primary caregiver of a child with a mental health disability that worsened during the pandemic, based on the employer’s assumption that the employee would not be fully available to colleagues and clients, or committed to the job, because of the employee’s caregiving obligations for a child with a disability. And it would be unlawful, for example, for an employer to decline to hire an applicant because her wife has a disability that puts the applicant’s wife at higher risk of severe illness from COVID-19, and the employer fears that its health insurance costs will increase if the applicant’s wife is added to its healthcare plan.
National origin discrimination. Discrimination based on employees’ race and/or national origin, including race- or ethnicity-based stereotypes or generalities related to the pandemic, is unlawful. Employers also may not apply different standards or require different processes for pandemic-related caregiving requests based on employees’ or care recipients’ race or national origin.
Intersectional discrimination. Employment decisions are illegal if they are based on the intersection of two or more characteristics protected by the laws the EEOC enforces. For example, an employer may not refuse to approve pandemic-related leave requests by male Native American employees with caregiving responsibilities if it approves such requests when made by similarly situated female Native American employees or similarly situated employees of other races or national origins.
Older employees. The Age Discrimination in Employment Act does not give older employees a right to a reasonable accommodation for caregiving or any other purpose. However, employers may, at their discretion, grant older workers’ requests for leave, flexible schedules, telework, or other arrangements to enable them to perform pandemic-related caregiving duties.
Poor job performance. Employers are not required to excuse poor performance resulting from employees’ caregiving duties. However, employers may not apply performance standards inconsistently to employees based on gender, race, association with an individual with a disability, or another characteristic or set of characteristics covered by federal employment discrimination laws.
Harassing conduct. Harassment related to employees’ pandemic caregiving responsibilities may arise in a variety of ways. Harassment may occur, for instance, in person or online, at on-site or remote workplaces, or while teleworking. Examples include:
- Disparaging female employees for focusing on their careers rather than their families during a traumatic event such as a pandemic.
- Accusing female employees, without justification, of being preoccupied with keeping their families safe from COVID-19, distracted from their professional obligations, and insufficiently committed to their jobs.
- Criticizing or ridiculing male employees for seeking to perform, or performing, caregiving duties, such as taking leave to care for a child who is quarantining after potential COVID-19 exposure, or limiting overtime or overnight travel, based on gender stereotypes of men as breadwinners and women as caretakers.
- Asking intrusive questions or making offensive comments about gay or lesbian employees’ sexual orientation after they request leave to care for their same-sex spouse, partner, or ex-partner, who has COVID-19 symptoms.
- Insulting Asian employees caring for family members with COVID-19 because COVID-19 was first identified in an Asian country.
- Assigning unreasonable amounts of work or imposing unrealistic deadlines on employees of color because they requested or received leave for pandemic-related caregiving purposes.
- Questioning, without merit, the professional dedication of employees caring for individuals with disabilities who are at higher risk of severe illness from COVID-19, or mocking such employees on that basis for taking pandemic precautionary measures to avoid infection.
- Stating that older employees caring for their grandchildren should be receiving care, not providing it, given the employees’ age; or asking whether the recipient of care is “worth the risk,” given older individuals’ higher risk of severe illness from COVID-19.
Employers can help prevent harassment by periodically distributing harassment policies and complaint procedures to all employees, posting the documents in accessible areas on-site and online, periodically training all employees about the policies and procedures, and demonstrating leadership’s commitment to creating and maintaining a work environment free from harassment.
Retaliation. Unlawful retaliation against employees with caregiving responsibilities may occur in a number of ways. For example, an employer may not refuse to recall an employee from a pandemic-related furlough because she filed a pregnancy discrimination complaint, or change the schedule of an employee with young children to conflict with school drop-off and pick-up times because she participated in a discrimination investigation.
For employers, the takeaway is that caregiver discrimination is a topic that the EEOC takes seriously. Given that the commission has provided guidance and technical assistance on the subject, it’s a safe better that it would be ready to enforce it through legal action.