With more employees returning to the office, many employers have struggled with increased caregiving demands on employees' time as a result of the COVID-19 pandemic. To address these concerns, the Equal Employment Opportunity Commission (EEOC) issued new guidance last month clarifying federal employment discrimination law as it applies to employees with caregiver responsibilities (EEOC Guidance). In this article, we highlight the key takeaways from the EEOC Guidance, and review some examples of what might constitute unlawful "caregiver discrimination."
What Constitutes "Caregiver Discrimination" Under the EEOC Guidance
The EEOC Guidance provides that, in certain circumstances, it may be unlawful for an employer to discriminate against an employee in connection with the employee's caregiving responsibilities for children, older relatives, relatives with disabilities, or other family members in need of care. It is important to note, however, that federal employment discrimination laws, such as Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act (ADEA), generally do not prohibit employment discrimination based solely on caregiver status.
Federal employment discrimination laws generally do not require employers to provide leave or other accommodations to employees based on an employee's need to provide care for a family member—as long as the employer administers its policies consistently for all employees. Employers are not required, for example, to excuse an employee's poor performance where the employee fails to meet reasonable performance expectations because of their caregiving duties. The EEOC Guidance notes, for instance, that an employer that has a practice of issuing written warnings to employees who arrive late to work may properly issue such a written warning to an employee who arrives late to work because of conflicting caregiving responsibilities.
Instead, the EEOC Guidance makes clear that "caregiver discrimination" is unlawful only when it is based on a protected characteristic of an employee or applicant, such as sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age, disability, or genetic information (e.g., family medical history), or when it is based on the employee's or applicant's association with another individual with any such protected characteristic.
Caregiver Discrimination Based on Sex and Pregnancy
The following are some examples of potentially unlawful caregiver discrimination based on an employee's or applicant's sex or pregnancy:
- Refusing to hire a pregnant applicant or taking adverse employment action (e.g., in a promotion decision) against a pregnant employee based on an assumption that the individual would focus primarily on caring for her newborn at the expense of her work responsibilities;
- Denying a male employee leave or a flexible work schedule to care for a sick family member (e.g., who tested positive for COVID-19), if the employer provides such leave or flexible work schedule to similarly situated female employees;
- Taking adverse employment action against, or permitting employees to make disparaging comments about, a pregnant employee because the employee opts to take reasonable preventive measures against exposure to COVID-19. For example, this might include unilateral reassignment of work duties or exclusion from certain work events or opportunities, even if intended solely to "protect" the employee; or
- Permitting disparaging comments by co-workers criticizing a female employee's decision to focus on her career rather than family or caregiver responsibilities.
Associational Disability Discrimination
The following are some examples of potentially unlawful caregiver discrimination based on an employee or applicant caregiver's association with an individual who has a disability covered under the ADA:
- Declining an employee's request for unpaid leave to care for a family member who has experienced extensive and prolonged COVID-19 symptoms, if the employer has granted unpaid leave of a similar length to employees who needed time off to address personal matters;
- Taking adverse employment action against an employee (e.g., in assignment of work) who is the primary caregiver of a family member with a disability, based on the assumption that the employee will not have sufficient time to adequately perform their job duties because of their caregiver obligations; or
- Refusing to hire an applicant because the applicant's spouse has a disability that would increase the likelihood of incurring higher health insurance costs, or taking an adverse employment action against an employee for adding a family member with a disability to their employer-sponsored health insurance plan.
Caregiver Discrimination Based on Race, Color, or National Origin
The following are some examples of potentially unlawful caregiver discrimination based on an employee's or applicant's race, color, or national origin:
- Refusing to hire an applicant, or taking adverse employment action against an employee (e.g., refusing office access), because the individual was born in a country with a high rate of transmission of the COVID-19 virus;
- Imposing more stringent COVID-19 preventative measures on an employee based on the employee's race or national origin (e.g., requiring an Asian employee to provide additional proof of vaccination because COVID-19 was first identified in an Asian country); or
- Denying an employee's request for leave to care for a sick family member from another country based on the assumption that the family member has contracted COVID-19, and/or administering the employer's leave policies inconsistently with respect to employees of color when compared with similarly situated white employees.
Considerations Under the FMLA and State/Local Laws
Employers should be aware that the EEOC Guidance does not address employment discrimination laws enacted by any state or local jurisdiction, some of which provide broader protections than federal employment discrimination law. For example, certain jurisdictions have enacted legislation that specifically prohibits employment discrimination on the basis of additional protected categories, such as familial responsibilities or caregiver status. Employers in these jurisdictions that take an adverse employment action against an employee because of the employee's caregiver duties might be subject to liability under state or local law, even if such action is permissible under federal law.
In addition, the EEOC Guidance does not address federal, state, or local leave laws that grant protected leave to eligible employees to care for sick family members. Employers subject to the Family and Medical Leave Act of 1993 (FMLA) may not retaliate against or interfere with an eligible employee's right to take leave under the FMLA, which includes leave to care for a covered family member with a serious health condition. Employees returning from FMLA leave are generally entitled to reinstatement to their previous job or to a position that is substantially equivalent in terms of compensation, benefits, opportunities for advancement, and other terms and conditions of employment. Numerous states and local jurisdictions have also enacted a variety of family and medical leave, paid sick leave, parental leave, and other, similar leave laws that may provide eligible employees a right to take leave to care for a family member with an illness, injury, or disability.
