With more employees returning to the office, many employers have faced increased on-time care requirements for employees due to the COVID-19 pandemic. To address these concerns, the Equal Employment Opportunity Commission (EEOC) released new guidance last month clarifying federal employment discrimination law as it applies to employees. with caregiver responsibilities (EEOC Orientations). In this article, we highlight key takeaways from the EEOC guidelines and review some examples of what might constitute illegal “caregiver discrimination.”
What Constitutes “Caregiver Discrimination” According to EEOC Guidelines
The EEOC guidelines provide that, in certain circumstances, it may be illegal for an employer to discriminate against an employee with respect to the employee’s care responsibilities for children, elderly relatives, parents 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 make do not prohibit discrimination in employment based on uniquely on caregiver status.
Federal employment discrimination laws generally do not require employers to provide time off or other accommodations to employees based on an employee’s need to care for a family member, as long as the employer consistently enforces its policies for all employees. Employers are not required, for example, to excuse an employee’s poor performance when the employee fails to meet reasonable performance expectations because of their caregiving duties. The EEOC Guidance notes, for example, that an employer who has a practice of issuing written warnings to employees who arrive late for work may properly issue such a written warning to an employee who arrives late for work due to conflicting care responsibilities.
Instead, the EEOC guidelines make it clear that “caregiver discrimination” is only unlawful when based on a protected characteristic of an employee or applicant, such as gender ( including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age, disability, or genetic information (for example, family medical history) , or where they are based on the association of the employee or candidate with another person having such a protected characteristic.
Discrimination of caregivers based on sex and pregnancy
Here are some examples of potentially unlawful caregiver discrimination based on an employee’s or job applicant’s gender or pregnancy:
- Refusing to hire a pregnant candidate or taking adverse employment action (for example, in a promotion decision) against a pregnant employee on the assumption that the individual would focus primarily on the care of her newborn baby to the detriment of their professional responsibilities;
- Denying a male employee leave or a flexible work schedule to care for a sick family member (for example, who has tested positive for COVID-19), if the employer grants such leave or flexible working hours to employees in a similar situation;
- Taking adverse action against a pregnant employee or allowing employees to make derogatory comments about her because the employee chooses to take reasonable preventive measures against exposure to COVID-19. For example, this may include the unilateral reassignment of duties or the exclusion of certain work events or opportunities, even if they are only intended to “protect” the employee; or
- Allow derogatory comments from co-workers criticizing an employee’s decision to focus on her career rather than family or caring responsibilities.
Associative discrimination linked to disability
Here are some examples of potentially unlawful discrimination for caregivers based on an employee’s or prospective caregiver’s association with an ADA-covered person with a disability:
- Denying an employee’s request for leave without pay to care for a family member who has exhibited widespread and prolonged symptoms of COVID-19, if the employer has granted leave without pay for a period of similar to employees who needed time off to deal with personal matters;
- Taking adverse employment action against an employee (for example, in the assignment of work) who is the primary caregiver for a disabled family member, assuming that the employee will not have sufficient time to perform his duties properly because of his caring obligations; or
- Refusing to hire a candidate because the candidate’s spouse has a disability that would increase the likelihood of incurring higher health insurance costs, or taking adverse employment action against an employee for adding a family member disabled to their employer-sponsored health insurance plan.
Discrimination of caregivers based on race, color or national origin
Here are some examples of potentially illegal discrimination for caregivers based on an employee’s or job applicant’s race, color, or national origin:
- Refusing to hire a candidate or taking adverse action against an employee (for example, denying access to the office), because the person was born in a country with a high transmission rate of the COVID-19 virus is high ;
- Imposing stricter COVID-19 preventive measures on an employee based on their race or national origin (for example, requiring an Asian employee to provide additional proof of vaccination because COVID-19 has been identified for the first time in an Asian country); or
- Denying an employee’s leave request 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 employer leave policies inconsistently regarding employees of color versus similarly situated white employees.
Considerations Under FMLA and State/Local Laws
Employers should be aware that the EEOC guidelines do not address employment discrimination laws enacted by any state or local jurisdiction, some of which provide broader protections than the Federal Employment Discrimination Act. job. For example, some jurisdictions have enacted legislation that specifically prohibits discrimination in employment based on additional protected categories, such as family responsibilities or caregiver status. Employers in these jurisdictions who take adverse employment action against an employee because of the employee’s caregiving duties may be liable under state or local law, even if such action is authorized by federal law.
Additionally, the EEOC guidelines do not address federal, state, or local leave laws that provide protected leave to eligible employees to care for ill family members. Employers subject to the Family and Medical Leave Act of 1993 (FMLA) cannot retaliate or interfere with an eligible employee’s right to take leave under the FMLA, which includes leave to care a covered family member with a serious medical condition. Employees returning from FMLA leave generally have the right to be reinstated to their previous employment or to a substantially equivalent position in terms of compensation, benefits, opportunities for advancement and other conditions of employment. Many states and local jurisdictions have also enacted various family and medical leave, paid sick leave, parental leave, and other similar leave laws that may entitle eligible employees to take time off for s Caring for a family member with an illness, injury, or disability.