On March 14, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released a technical assistance document, the COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws, which explains how discrimination against applicants and employees with caregiving responsibilities can violate federal equal employment opportunity (EEO) laws. Although EEO laws do not prohibit discrimination against caregivers specifically, there are some circumstances in which discrimination against caregivers may be unlawful. Because the COVID-19 pandemic has created — and exacerbated — competing job and caregiving demands for individuals as they navigate hybrid work schedules, unexpected closures of school and care facilities, and potential COVID-19 exposure, the EEOC’s updated information may inform employer decisions and actions as they adapt their workplaces to the evolving COVID-19 pandemic.
The EEOC’s technical assistance explains that discrimination against caregivers violates federal EEO laws when it is based on an applicant’s or employee’s legally protected characteristic, such as sex, race, religion or disability. 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 Americans with Disabilities Act of 1990 (ADA), or on the protected characteristic of the individual for whom the applicant or employee is providing care.
As a reminder, employees do not have a right under EEO laws to reasonable accommodations such as telework, flexible schedules, or reduced travel or overtime because they are caregivers, although depending on the nature of the relationship, they may qualify for leave under the federal Family and Medical Leave Act or state or local leave entitlements. Additionally, an employer is not required to excuse poor performance resulting from an employee’s caregiving duties. But 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 their job duties. Employers may also provide accommodations at their discretion but must do so in a nondiscriminatory manner.
The EEOC’s technical assistance provides examples of unlawful discrimination against caregivers. For example, an employer may not refuse to hire a female based on the employer’s assumption that she would focus primarily on caring for her young children. An employer is also prohibited from denying a male employee’s request for leave to care for a family member with COVID-19 if the employer grants the same requests from similarly-situated female employees.
The EEOC further explains that EEO laws prohibit employers from imposing certain restrictions on employees with caregiving responsibilities even if those restrictions are well-intended. An employer, for example, may not refuse to assign a project to a female employee that requires travel or overtime because the employer assumes that the woman would prefer not to travel or work additional hours due to her caregiving responsibilities. Similarly, an employer may not require pregnant employees or older employees to telework or adjust their schedules in an effort to limit their exposure to COVID-19. But an employer may grant requests for assignments that do not require overtime or travel, or requests to telework, so long as the employer grants the requests in a nondiscriminatory manner.
Employers also may not discriminate against applicants and employees with caregiving responsibilities based on sexual orientation or gender identity. It is an unlawful, for example, for an employer to require LGBTQ employees who request leave for their caregiving responsibilities to show proof of a marital or family relationship with the individual needing care, but not impose the same requirements on other employees who make similar requests for leave.
Employers also should keep in mind that the ADA’s definition of a “disability” may include a person with COVID-19 or long COVID — where individuals experience new, returning or ongoing health problems four or more weeks after being infected with the virus that causes COVID-19. Because the ADA prohibits discrimination based on an employee’s association with an individual with a disability, an employer may not refuse an employee’s request for unpaid leave to care for someone such as a parent who has long COVID, if it approves requests from other employees for unpaid leave to handle other personal responsibilities.
The EEOC’s technical assistance also reminds employers that harassment towards employees with caregiving responsibilities may contribute to an unlawful hostile work environment. Ridiculing a male employee based on gender stereotypes for taking leave to care for a child who potentially has been exposed to COVID-19 may constitute harassing conduct. EEO laws also prohibit employers from retaliating against employees for engaging in protected conduct. An employer may not, for example, change the schedule of an employee to conflict with her children’s daycare drop-off and pick-up time because the employee reported employment discrimination, even if investigation did not substantiate that unlawful discrimination occurred.
The technical assistance supplements the EEOC’s Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities and Employer Best Practices for Workers with Caregiving Responsibilities. The EEOC has also updated its COVID-19 What You Should Know materials to include information about pandemic-related caregiver discrimination. If you have any questions about these matters, please contact one of the Faegre Drinker professionals below for further details.