EEOC Says Discrimination Against Caregivers Can Violate Employment Discrimination Laws: Five Takeaways for Employers | Fisher Phillips
Although COVID-19 cases have been steadily declining recently, human resources staff, in-house legal counsel and front-line managers continue to grapple with issues around employee care obligations in the wake of the pandemic. These obligations may include caring for a child whose school or daycare has unexpectedly closed due to an outbreak, caring for a family member who has contracted COVID-19, or whose mental health disability has worsened during the pandemic, or unexpected quarantine due to exposure to someone infected with COVID-19. In light of these increased caregiving responsibilities, many employers have been asked to provide more flexibility in the form of modified working hours, telecommuting (in many cases on a permanent basis), extended leaves and modified duties.
The Equal Employment Opportunity Commission has just released guidance to clarify the circumstances in which discrimination against someone with caring responsibilities in the age of COVID may be unlawful under federal employment discrimination laws. It is important to note that federal EEO laws do not prohibit discrimination based solely on caregiver status. Instead, the Commission explains in its guidance that “caregiver discrimination” only violates federal law if it is based on:
- Applicant or employee’s sex (including pregnancy, sexual orientation or gender identity), race, color, religion, national origin, age (40 years or older) , disability or genetic information (such as family medical history); Where
- An association of claimants or employees with a person with a disability, as defined in the ADA, or on the race, ethnicity, or other protected characteristic of the person to whom care is provided.
While there’s nothing particularly surprising about these guidelines, it does signal increased attention by the EEOC to caregiver-related claims.
What does this mean for employers? Five biggest takeaways
- Avoid making decisions based on assumptions or stereotypes. For example, gender stereotypes that women are caregivers and therefore less engaged in their work and less reliable are inappropriate. Similarly, denying men leave or permission to work remotely to care for a family member with COVID-19 would be illegal if the same requests were granted to female employees in the same situation.
Even well-intentioned decisions can go against the law. For example, if an older worker is caring for a grandchild while the child’s parents recover from COVID-19, employers should not require the worker to work fewer hours due to fears that the worker lacks the stamina to work full time while caring for a child. . Additionally, employers should not refuse to assign female caregivers to projects that require overnight travel or late nights to make it easier for the employee to juggle work and family obligations.
The key to avoiding complaints is to apply your policies consistently to employees in a similar situation.
- LGBTQI+ employees and applicants are protected from discrimination against caregivers. Two years ago, the United States Supreme Court ruled in Bostock v. County of Clayton that discrimination based on a person’s sexual orientation or gender identity violates Title VII of the Civil Rights Act. Therefore, with caregiver issues in mind, employers should determine whether a policy or practice violates federal law. For example, employers should not impose more onerous procedures on LGBTQI+ employees who make care-related requests, such as requiring proof of a spousal or family relationship with the person requiring care, if such requirements are not imposed on other employees who make such requests. .
- Employees are not entitled to reasonable accommodation based on their caregiver status. Employers don’t need to provide accommodations such as remote working, flexible hours, or reduced travel just because an employee is a caregiver. Of course, if you are considering denying such a request, you should determine whether another federal, state, or local law provides such a right. For example, the Family Medical Leave Act provides 12 weeks of job-protected leave for eligible employees who are needed to care for covered family members with serious medical conditions. Additionally, even if you are not legally required to provide a flexible arrangement, employers may choose to do so as long as the policy and/or practice is consistently applied to similarly situated employees.
- Pandemic-related pregnancy discrimination can arise in a variety of ways. For example, the EEOC says it would be illegal for an employer to allow female employees to harass a pregnant co-worker for maintaining physical distance from co-workers, changing schedules, telecommuting, or taking other steps to avoid harm. being exposed to or infected with COVID-19[FEMININE[FEMININE
Again, even well-intentioned decisions can lead to legal exposure. For example, employers should not unilaterally require pregnant employees to work remotely or adjust their schedules to limit contact with others to ensure the safety of pregnant employees.
Finally, although pregnancy is not a legal disability, certain pregnancy-related medical conditions, such as severe fatigue due to COVID-19, may be legal disabilities. If a pregnant employee requests an accommodation, you should engage in the interactive process as you would any other employee.
- Employers are not required to excuse poor performance caused by caregiving responsibilities. The key is to ensure that performance standards are applied consistently. For example, if an employer provides written warnings to a Hispanic employee who repeatedly arrives late for work due to pandemic-related care obligations, they should not ignore this behavior of employees of other ethnicities. being in the same situation.
Employers should carefully consider the many circumstances in which so-called caregiver discrimination claims may arise, especially given that the EEOC has signaled with its guidance that such claims will be a priority for enforcement. To reduce the risk of complaints, we recommend that you review and update your EEO policies and complaints procedures, post the policies in accessible areas on-site and online, conduct periodic training, investigate and address complaints, and apply your policies consistently.