EEOC issues caregiver discrimination guidance

The U.S. Equal Employment Opportunity Commission (EEOC) issued a reminder that employers who discriminate against caregivers in the workplace may violate federal law. While caregivers are not explicitly called out in federal employment laws, certain assumptions can lead employers to run afoul of protections based on sex, race, religion, age, or disability.

“As the pandemic evolves, and the country moves to a new normal, we cannot assume caregiving obligations have ended,” said EEOC Chair Charlotte A. Burrows, in a statement. “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 EEOC issued technical assistance documents, including “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law,” and an update to its COVID-19 “What You Should Know” explaining discrimination against employees and job seekers with family caregiving responsibilities.

The following were among the examples of unlawful discrimination provided:

• Refusing to hire an applicant who is the primary caregiver for an individual at high risk of COVID-19 complications, out of fear the employer’s healthcare costs would increase.
• Refusing to promote a woman based on assumptions that, because she is a woman, she would need to focus on caring for her children during periods of quarantine or remote learning.
• Penalizing a woman more harshly than a male employee for absences or missed deadlines due to caregiving duties.
• Denying a male caregiver leave or permission to work a flexible schedule when similar requests from female caregivers have been granted.
• Requiring an LGBTQI+ employee to provide proof of family caregiving responsibilities (e.g., marital status or family relationship) when other employees were not required to provide such proof.
• Allowing company employees to harass a pregnant coworker for maintaining physical distancing, adjusting their schedule, teleworking, or other actions to avoid being exposed to COVID-19.
• Requiring a pregnant employee to telework or adjust their schedule to limit contact with colleagues and customers.

The EEOC guidance reminds employers that it is unlawful to base employment decisions on gender stereotypes, even if those decisions are well-intentioned.

“The pandemic has heightened our awareness of the vital role that caregivers play in our society,” said EEOC Vice Chair Jocelyn Samuels. “The real-world scenarios in this technical assistance show how federal EEO laws apply to employees who have caregiving responsibilities and how employers can, within those laws, better support caregivers in balancing work and family responsibilities.”