Are you interested? EEOC offers guidance on caregiver discrimination and COVID-19

“Caregivers” (e.g., people who care for other family members) aren’t technically a protected class under current federal anti-discrimination law, but the Equal Opportunity Commission in matters of employment has published new advice and updated his “What you need to know about COVID-19resource on when he believes discrimination against caregivers may involve Title VII and the Americans with Disabilities Act. This complements those that existed before general orientationa fact sheetand best practices on the discrimination of caregivers.

When does discrimination against caregivers break the law? According to the EEOC:

Discrimination against caregivers violates federal employment discrimination laws when based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity). ), race, color, religion, national origin, age (40 or older), disability, or genetic information (such as family medical history). Discrimination of caregivers is also illegal if it is based on an applicant’s or employee’s association with a person with a disability, as defined in the ADA, or on race, ethnicity, or any other protected characteristic. of the person receiving care. Finally, discrimination of caregivers violates these laws if it is based on intersections between these characteristics (for example, discrimination against black caregivers based on racial and gender stereotypes, or discrimination against Christian caregivers based on religious stereotypes and gender).

Examples of discrimination. The EEOC gives examples of unlawful discrimination against caregivers, including the following:

  • Sexual discrimination.
    • Refusing to hire or promote a woman thinking she should/should focus primarily on caring for children or parents.
    • Make assignments, especially on demanding or large projects, based on assumptions about a female caregiver’s ability to balance work and personal obligations or work overtime.
    • Stereotype men as breadwinners and women as caretakers, so that men are denied flexible hours to take care of care duties or denied requests for exceptions to back-to-work policies. work or attendance.
    • Require LGBTQ+ employees, but not others, who make caregiver-related inquiries to provide proof of family connection.
    • Denying care leave because of the sexual orientation or gender identity of the employee or their partner.
  • Discrimination of pregnancy.
    • Refusing to hire or promote or demote pregnant employees on the assumption that they should focus on their pregnancies, or allowing harassment of pregnant employees for taking precautions to avoid COVID-19 (e.g., physical distancing, schedule changes, telecommuting).
    • Unilaterally make schedule changes or require pregnant employees to work from home to protect them from COVID.
  • Discrimination related to disability.
    • Discriminating against employees because of their association with the care recipient, such as denying leave to care for a family member with a disability resulting from long COVID while granting unpaid leave to other personal responsibilities, or refusing to promote an employee whose mental disability has worsened during the pandemic on the assumption that they would not be fully available for work, or refusing to hire someone for fear of increased insurance costs for a spouse who is at higher risk of serious illness from COVID.
  • Racial/national origin discrimination.
    • Applying different standards to employees (with care responsibilities) of one race but not another, such as requiring proof of vaccinations or denying leave because the care recipient is from a country with a recently identified variant.
  • Age discrimination.
    • Basing employment decisions or imposing different terms of employment on age or age stereotypes, such as assuming that an older worker who has to care for a grandchild whose parent has COVID does not have the stamina to balance work and caregiving.
  • Intersectional discrimination.
    • It is discrimination based on the intersection of two or more protected characteristics, such as denying care leave to Native American male employees while granting it to Native American female employees or those of other races/ national origins.

Harassment. The EEOC provides examples of harassing behavior related to caregiving responsibilities, including:

  • Putting down employees for focusing on their careers rather than their families.
  • Accusing employees of being preoccupied with their families and distracted from their work.
  • Criticize male employees for caring activities.
  • Asking intrusive questions about an employee’s sexual orientation as part of a request for leave to care for a partner.
  • Insulting Asian employees caring for family members with COVID because COVID was first identified in an Asian country.
  • Assigning unreasonable amounts of work or imposing unrealistic deadlines on employees of color because they have requested care leave.
  • Questioning the professional dedication of employees caring for people with disabilities or mocking them for taking pandemic precautionary measures.
  • Declare that older employees should receive care, not provide it.

The EEOC suggests preventative measures such as periodically distributing harassment policies and complaints procedures to all employees, posting these materials on-site and online, training employees on these policies and procedures, and demonstrating management’s commitment to a harassment-free workplace. Employers must also apply their harassment policies in a consistent and non-discriminatory manner, respond promptly to harassment-related questions/concerns/complaints, and take prompt and effective corrective and preventive action.

No reasonable accommodation required. The EEOC notes that there is no right to reasonable accommodations (e.g., telecommuting, flextime, reduced travel, or overtime) under federal anti-discrimination laws based strictly on caregiver status. But they may be entitled to leave under the Family and Medical Leave Act and similar national/local laws.

In addition, those who are unable to perform their duties due to pregnancy or childbirth should be treated the same as other employees temporarily unable to perform their duties. And they may be entitled to accommodations under the ADA or state law if they have pregnancy-related disabilities.

Performance standards can be applied. Employers are not required to excuse poor performance associated with caregiving tasks, as long as the standards are applied consistently.

No retaliation. The EEOC emphasizes that employers are prohibited from retaliating against employees for exercising their rights under anti-discrimination laws, such as by filing complaints, participating in investigations, or reasonably objecting to behavior that they consider discriminatory. Here are some examples of retaliation:

  • Refusing to call back an employee on leave because he filed a pregnancy discrimination complaint.
  • Changing an employee’s schedule to conflict with school drop-in and pick-up times because she participated in a discrimination investigation.
  • Transferring a manager caring for a family member at a local assisted living facility to a remote office because he refused to obey a discriminatory order.

The EEOC offers suggestions for preventing retaliation, such as educating officials on their obligations under federal anti-discrimination laws (including non-retaliation), informing complainants/participants of their right to freedom from retaliation and what to do if they experience retaliation, and take appropriate preventive and corrective action in the event of retaliation.

About Antoine L. Cassell

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