EEOC Issues New Guidance On Caregiver Bias

In March of 2022, the Equal Employment Opportunity Commission (EEOC) issued updated guidance on “caregiver discrimination” in the workplace considering workplace changes due to the COVID-19 pandemic.

The COVID-19 pandemic drastically altered many employees’ work and personal obligations. Workers with caregiving responsibilities were faced with unique struggles like fulfilling work obligations while navigating school or care facility shutdowns. Some employees live in homes with immunocompromised family members or young children, which may leave them reluctant to return to a crowded workplace.

The EEOC stressed that the COVID-19 pandemic increased occurrences of caregiver bias among employers. Studies show that during the pandemic, workers with caregiver responsibilities have been penalized or screened out of jobs due to their personal obligations.

When Discrimination Violates Law

Under federal law, it is illegal to discriminate against an employee based on race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, or genetic information. Even though “caregiver” is not a protected class under federal anti-discrimination laws, employers may be violating federal laws under one of the listed classifications by treating their caregiving employees differently than other employees.

According to the EEOC, discrimination against employees with caregiving responsibilities during the pandemic may violate Title VII of the Civil Rights Act of 1964 and Titles I and V of the Americans with Disabilities Act of 1990.

The EEOC’s new guidance outlines company policies like hiring practices that could unlawfully discriminate against employees or applicants responsible for caring for family members during the COVID-19 pandemic.

Who Is Protected by New Guidance?

The new guidance protects any employees who have caregiving responsibilities due to the pandemic that is perceived as interfering with the ability to work. Federal discrimination laws do not prohibit employment discrimination based solely on caregiver status, so the discrimination must be related to caregiver status and a class defined in the federal anti-discrimination law.

Details And Examples

Studies have shown that women were disproportionately impacted by caregiver bias throughout the COVID-19 pandemic because women are more likely to take on the responsibility of caring for young children.

However, the EEOC does recognize that many women make these choices for themselves, and it is not in violation of federal law for the employer to act based on the employee’s expressed preference.

Men who choose to take on caregiver responsibilities are covered under the EEOC’s new guidance as it would violate federal law to discriminate against any employee based on sex.

Pregnant employees or employees with disabilities who choose to maintain physical distance from colleagues or need accommodations for schedule changes and remote work to avoid COVID-19 exposure cannot be harassed or discriminated against.

The new EEOC guidance emphasizes the point that if an employer makes accommodations for one employee, it must provide accommodations to any employees with similar limitations, including pregnancy.

Additional examples of discrimination against caregivers based on a class protected under federal anti-discrimination laws include:

• Requiring an employee who is a caregiver for a same-sex spouse to provide documentation of the relationship but not requiring employees with opposite-sex spouses to provide the same proof.
• Treating an older employee with caregiving responsibilities differently than younger employees with caregiving responsibilities.
• Harassing a female employee for focusing more on family responsibilities than work responsibilities.
• Harassing a male employee for taking on caregiving responsibilities which are traditionally seen as a “female role.”
• Refusal to hire a female applicant because she has responsibilities to care for young children
• Penalizing women more harshly for missing work or deadlines due to COVID-19-related caregiving responsibilities.

While discrimination against caregiving responsibilities in relation to sex, age, religion, or another protected category is illegal, the EEOC maintains that caregiving responsibilities and the COVID-19 pandemic cannot be used as an excuse for poor employee performance.

Conclusion

If an employee with caregiving responsibilities believes they have suffered discrimination, they should first report the discrimination to their employer. If further action is necessary, both private sector and state and local government employees can report discrimination directly to the EEOC.

Employers that would like additional information about the EEOC’s new guidelines and caregiver discrimination can view the EEOC’s policy guidance document, fact sheet, and employer best practices document.

Employers can contact their local EEOC Outreach and Education Coordinator for more information about outreach and education on caregiver discrimination and federal employment discrimination laws.