The COVID-19 pandemic placed a spotlight on the demands of juggling work and personal obligations, including coordinating the demands of virtual learning, school closures, and other scheduling issues. Even as the pandemic evolves into an endemic, COVID-19 may still have a lingering effect on the lives of workers who need to work around hybrid school schedules and unexpected exposures and quarantines. Given these persistent challenges, the Equal Employment Opportunity Commission issued guidance earlier this month reminding employers that discrimination against a person with caregiving responsibilities may be unlawful under a number of federal employment discrimination laws, including the Americans with Disabilities Act, the Equal Pay Act, the Pregnancy Discrimination Act, Title VII of the Civil Rights Act, and the Family and Medical Leave Act.
Caregiver discrimination can take many forms
Caregiving responsibilities encompass care for children, parents, and other older family members, as well as close relatives with disabilities. Discrimination against caregivers violates federal employment discrimination laws to the extent it is based on a protected characteristic (i.e., sex, race, religion, age, disability, etc.) of an applicant or employee. It is also unlawful to the extent it is based on a protected characteristic of the individual for whom care is provided. Caregiver discrimination is also unlawful to the extent it is based on a class-based stereotype, i.e., women in caregiver roles.
The EEOC is clear that federal employment laws do not prohibit discrimination that is based solely on caregiver status. Discrimination occurs only if based on a federally protected characteristic.
Caregiver discrimination can take various forms – some blatant, and some more subtle. Examples of unlawful caregiver discrimination include:
- An employer refuses to hire a female applicant or refuses to promote a female employee based on assumptions that, because she is female, she will (or should) focus primarily on caring for her young children while they attend school remotely, or caring for her parents or other adult relatives.
- An employer penalizes female employees more harshly than similarly situated male employees for absences or missed deadlines due to pandemic-related caregiving duties.
- An employer declines to assign female caregivers demanding or high-profile projects that increase their advancement potential but require overtime or travel, or reassigns such projects from female caregivers based on its assumptions that such actions will make it easier for female employees to juggle work and personal obligations, or based on the belief that female caregivers cannot or would prefer not to work extra hours or be away from their families if a family member is infected with or exposed to COVID-19.
- An employer denies 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 but grants such requests when made by similarly situated women.
- An employer refuses an employee’s request for unpaid leave to care for a parent with long COVID that qualifies as a disability, while approving other employees’ requests for unpaid leave to handle other personal responsibilities.
- An employer refuses 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 its 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.
Other employer considerations
The EEOC also makes clear that employees do not have a right under federal employment laws to reasonable accommodations such as telework and flexible schedules just because they are caregivers. However, 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 job duties. In addition, caregivers may have rights under the FMLA.
It’s important to note that employers are not required to excuse poor performance resulting from an employee’s caregiving duties. However, in an effort to minimize the threat of discrimination litigation, employers should ensure they are applying performance standards consistently to all employees, regardless of their protected status.