Key highlights:
- Don’t treat caregivers differently because of gender, race, or age.
- Don’t assume caregivers’ job preferences based on stereotypes.
- There is no federal legal duty to accommodate caregivers.
- If you are accommodating caregivers, make sure those accommodations are not different based on gender, race, age, or other protected categories.
The US Equal Employment Opportunity Commission (EEOC) presents its technical assistance guidance, The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws, issued March 14, 2022, as “established policy positions to discuss when discrimination against applicants and employees related to pandemic caregiving responsibilities may violate” the federal employment discrimination laws enforced by the EEOC.
Does this new guidance carve out new frontiers for potential liability or just restate well-established principles? The answer is more of the latter.
No new laws or regulations have been adopted expanding legal liability to cover caregiver or victims of COVID-19. However, the EEOC’s guidance is a good reminder of what the law requires – and does not require – when addressing employees or applicants who may be caretakers.
Here are the top ten takeaways of what the guidance does and does not do.
What the updated guidance does do:
1. Disparate treatment because of association with a person with a disability is illegal.
The guidance reminds employers that it is illegal under the Americans with Disabilities Act (ADA) to engage in discrimination because of an individual’s association with a person with a disability.
It is easy to see how this could come up in a caregiving context. Many individuals who are caregivers are caregivers for individuals with disabilities as defined by the ADA. Treating those caretakers differently than other individuals would be potential discrimination under the ADA.
For example, it would be ADA discrimination to not hire an applicant because that person is a caregiver of a person with a disability. This would be associational disability discrimination. EEOC’s guidance illustrates this. It states that it would “be unlawful, for example, for an employer to refuse 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 employer’s 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.” Guidance, Question 9.
2. Making decisions based on stereotypes of who may be a caretaker based on a protected category could be discrimination.
Decisions based on who may be a caretaker based on gender, race, or national origin can be a form of discrimination. There can be intersectionality between caregiver status and gender or race. EEOC’s guidance provides an example of this: an employer not promoting a female employee “based on assumptions that, because she was female, she would (or should) focus primarily on caring for her young children while they attend school remotely, or on caring for her parents or other adult relatives.” Guidance, Question 2.
Although being a caregiver is not a protected category, making caregiving assumptions of one gender over another, as in this example, would be a form of gender discrimination, as would other assumptions involving other protected bases and caregiving responsibilities.
3. Limiting job opportunities out of a sense of benevolence based on a protected category can be discrimination.
Acting out of perceived protection of a caregiving employee based on gender (or other protected category) can be discrimination. If the employer refuses to provide positions, promotions, or opportunities based on caretaking stereotypes connected to a protected category, such actions could violate antidiscrimination laws – even if the employer is taking these actions to “help” the employee.
The EEOC provides the example of not offering demanding job tasks or travel to female employees because of assumptions of their caregiver responsibilities. “[E]mployers may not decline to assign female caregivers demanding or high-profile projects that increase employees’ advancement potential but require overtime or travel, or reassign such projects from female caregivers, based on employers’ 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.” Guidance, Question 2.
The same concerns apply to treatment of pregnant employees. It would be unlawful to refuse to hire or promote a pregnant individual based on assumptions that these individuals should be primarily focused on the health or safety of their pregnancies. Guidance, Question 6.
4. Employers can’t accommodate caregivers of one gender (or other protected groups) and not others.
It is illegal to accommodate only one gender based on gender assumptions of caretaking roles. If employers provide accommodations for mothers for caretaking duties, they cannot treat male caretakers differently. It is unlawful to assume only women are engaged in caretaking and not make similar accommodations to male employees requesting comparable flexibility in dealing with caretaking duties for children, spouses, or parents. Guidance, Question 3.
5. Differences in how an employer treats accommodations based on sexual orientation or gender identity could violate Title VII of the Civil Right Act of 1964.
For example, it is illegal to require some employees to provide proof of relationship status, but not have the same requirement for others of a different sexual orientation.
The EEOC guidance states that employers “may not impose more burdensome procedures on LGBTQI+ employees who make caregiver-related requests, such as requiring proof of a marital or other family relationship with the individual needing care, if such requirements are not imposed on other employees who make such requests.” Guidance, Question 4.
What the Guidance does not do:
6. The guidance does not create an affirmative duty to accommodate caregivers.
Although the EEOC recognizes that there are concerns over the demands of caregiving experienced by the workforce, the EEOC’s guidance identifies no affirmative duty to provide accommodations for caregivers under the federal antidiscrimination laws. Guidance, Question 5
7. There is no duty to accommodate an individual associated with a disabled person.
The ADA prohibits employers from treating individuals who are associated with a disabled person differently, but does not require employers to accommodate a non-disabled individual. The ADA’s affirmative duty of providing reasonable accommodations applies only to individuals with a disability. Thus, employers are not required to accommodate caregivers of disabled people under the ADA.
8. There is no duty to accommodate older workers under the Age Discrimination in Employment Act (ADEA).
The EEOC recognizes that even though older workers face unique challenges in caregiving and coping with the COVID-19 pandemic, the age discrimination laws do not create a duty to accommodate. The ADEA does not give older employees a right to a reasonable accommodation for caregiving or any other purpose. Guidance, Question 12.
9. Caregivers are not excused from work rules or work expectations.
Related to the lack of any legally affirmative duty to accommodate caregivers, there is no requirement under the federal antidiscrimination laws to excuse poor performance or violation of work rules because of caregiving responsibilities. Guidance, Question 13.
10. The federal antidiscrimination laws do not prohibit employees from accommodating caregivers if they want to – as long as the accommodations are not granted in a discriminatory manner.
An employer may take extra steps to help its employees with caregiving responsibilities. For example, “if employees with caregiving responsibilities request work assignments that have a predictable schedule or that do not require extra hours or travel, employers may grant such requests at their discretion, as long as they do so in a nondiscriminatory manner.” Guidance, Question 2. Employers are free to do more than is required by the law if those accommodations are not awarded in discriminatory ways based on a protected category, such as race, gender, national origin, age, religion, disability.
Conclusion
The EEOC’s guidance on caretaker discrimination does not create new obligations or new legal interpretations. But the guidance does remind employers about the tensions employees with caretaking responsibilities may face in the workplace. Employers should be evenhanded in how they address caretaking issues or base decisions regarding caretakers on stereotypes and assumptions to avoid legal risks. However, the antidiscrimination laws do not create an affirmative duty to offer accommodations to caregivers.
Authors: Andrew Maunz and Richard Mrizek, Jackson Lewis P.C.
Check out additional resources:
1. The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws
2. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
3. 15 Lessons Learned as a Caregiver Lawyer During the Pandemic
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