EEOC Issues Guidance on Caregiver Discrimination

April 14, 2022

Federal employment discrimination laws do not prohibit employment discrimination based solely on an individual’s status as a caregiver.  But caregiver discrimination does violate federal employment discrimination laws, such as Title VII, the Americans with Disabilities Act of 1990, and the Age Discrimination in Employment Act, when it is based on another protected characteristic, like an individual’s sex (including pregnancy), sexual orientation, gender identity, race, color, religion, national origin, age, disability, genetic information (such as family medical history) or another federally protected characteristic of the individual for whom care is provided.  The United States Equal Opportunity Commission (“EEOC”) recently issued new technical assistance to help employers understand this type of caregiver discrimination.

Since a significant number of employees had to adjust their work-life balance to deal with children out of school, ill family members and/or quarantining at one point or another during the pandemic, COVID lay bare how this type of discrimination may play out in the real world.  But it is important to note that the EEOC’s new guidance on caregiver discrimination is not limited to taking care of someone with COVID.  The new technical assistance addresses “caregiver discrimination in a broad range of circumstances beyond the pandemic.”

The full technical assistance comes in the form of questions and answers and uses a variety of examples to help explain when caregiver discrimination might occur.  Its overarching theme regarding caregiver discrimination is that employers must treat their employees even-handedly without regard to their legally protected status or stereotypes about a person’s age, race, gender, or sexual orientation.  Even when well-intentioned, making employment decisions based on pre-conceived notions about caregiving responsibilities that are based on sex, race, age, disability, or otherwise, are likely to lead to unlawful conduct on the part of employers.  Here are some of the higlights.

Sex Discrimination and Caregivers

Caregiving discrimination based on sex might occur if an employer makes employment decisions based on stereotypes about gender.  Such stereotypes might include, for example, the notion that females serve as the primary provider of care for children or other family members.  Making a decision based on this type of gender stereotype could be unlawful, even if it is well-intentioned.

According to the EECO’s new technical assistance, it would violate federal law, for example, if an employer refused to promote a female employee or assign her high-profile, time-consuming projects, or assignments involving travel, based on assumptions that, because she is female, she would (or should) focus primarily on caring for her young children while they attend school remotely.  Even if the employer makes such decision in an attempt to make it easier for female employee to juggle work and personal obligations, this may well be sex discrimination.

Males can also be the victim of caregiver discrimination on the basis of sex.  For example, if employers discriminate against male caregivers based on gender stereotypes that men are (or should be) the primary breadwinners while women take care of the children and/or other relatives, this would constitute unlawful caregiver discrimination.  It also would be unlawful for an employer to deny men leave or flexible schedules to handle pandemic or other caregiving duties if the employer grants such to similarly situated women.

Discrimination on the Basis of Sexual Orientation

LGBTQI+ applicants and employees are protected from caregiver discrimination when it implicates their sexual orientation.

For example, employers may not impose more burdensome procedures (like requiring proof of a marital or other family relationship with an individual needing care) when LGBTQI+ employees seek time off, flexible schedules, or make other caregiver-related requests.  Unless such requirements are imposed on heterosexual employees, they cannot be required of LGBTQI+ employees.  Employers also may not deny caregiving leave to an employee with a same-sex partner based on the sexual orientation or gender identity of the employee or the employee’s partner.  This too would be unlawful caregiving discrimination.

Pregnancy Discrimination in the Caregiving Context

It would be unlawful under Federal law to refuse to hire pregnant applicants, or to demote or refuse to promote pregnant employees, based on assumptions about the need to ensure the safety and health of a pregnant woman and/or her fetus.

Employers also cannot unilaterally require pregnant employees to telework or adjust their schedules to limit contact with colleagues, customers, or others whose COVID or vaccination status is unknown, in order to help keep pregnant employees safe.  Employment decisions based on pregnancy are unlawful, even if they are made for purportedly benevolent reasons.

But remember, this does not mean that pregnant employees are never entitled to reasonable accommodations.  Employers may well have to accommodate pregnant employees who temporarily cannot perform their essential job functions, by for example, providing modified duties, alternative assignments, or leave if employers provide these options to other non-pregnant employees temporarily unable to perform their job duties.  The need for such accommodations should be raised by the pregnant employee and tied to specific job functions that temporarily cannot be performed, rather than by the employer, based on an assumption that such accommodations may be necessary simply because an employee happens to be pregnant.

Disability Discrimination and Accommodations for Caregivers

Employees with caregiving responsibilities may have rights under other laws, such as the right to leave for covered caregiving purposes under the Family and Medical Leave Act  or similar state or local laws.  But federal employment discrimination laws generally do not require employers to allow telework, flexible schedules, or reduced travel or overtime to help an employee handle caregiving duty.  When employers choose to provide such accommodations to employees they must do so in a nondiscriminatory manner.  In other words, if you provide flexible schedules or reduced travel to non-disabled employees to care for a family member, you may also need to provide similar accommodations to other, similarly situated non-disabled employees.

It would also unlawful caregiver discrimination for an employer to discriminate against an applicant or employee because of that person’s association with an individual with a disability.  For example, it would be unlawful 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.

It would also be unlawful for an employer to decline to hire an applicant because, for example, his wife has a disability that puts the applicant’s wife at higher risk of severe illness from COVID-19, and the employer fears that its health insurance costs will increase if the wife is added to its healthcare plan.

Refusing an employee’s request for unpaid leave to care for a parent with long haul COVID recognized as a disability under the laws might also be unlawful if other employees’ requests for unpaid leave to handle personal responsibilities are routinely granted, according to the EEOC technical assistance.

Race-Based Caregiver Discrimination

Making employment decisions because of race- or ethnicity-based stereotypes related to caregiving or COVID care may also lead to a discrimination claim.  Employers also may not apply different standards or require different processes for pandemic-related caregiving requests based on employees’ or care recipients’ race or national origin.

For example, it would be unlawful for an employer to deny an employee’s request for leave to care for a cousin from another country recently diagnosed with COVID because the variant first surfaced in the relative’s country of origin.  It also would be unlawful for an employer to apply different standards regarding requests for leave, flexible schedules or telework, to Black or Asian employees when they do not apply the same requirements to similarly situated employees of other races.

Age Discrimination of Caregivers

The EEOC’s technical assistance confirms that older employees are not entitled to accommodations such as telework, flexible schedules, or to care for a family member, simply because of their age.  But the Age Discrimination in Employment Act does prohibit employers from discriminating against older workers based on age-related stereotypes, including by imposing different terms of employment on older workers with caregiving responsibilities.  For example, if an older worker is caring for a grandchild while the child’s parent recovers from COVID, it would be unlawful for the employer to require the worker to accept a reduced schedule out of concern that, because of the worker’s age, the worker lacks the stamina to perform full-time job duties effectively while also caring for a young child.

Unlawful Caregiver Harassment

Harassment related to employees’ caregiving responsibilities also may be unlawful if it causes or contributes to a hostile work environment.  Here are some examples:

  • Disparaging female employees for focusing on their careers rather than their providing caregiving to their family members;
  • Accusing female employees, without justification, of being distracted from their professional obligations, and insufficiently committed to their jobs because of an alleged preoccupation with keeping their families safe from COVID;
  • Asking intrusive questions or making offensive comments about gay or lesbian employees’ sexual orientation after they request leave to care for their same-sex partner;
  • Insulting Asian employees caring for family members with COVID, or making fun of employees of any ethnic background caring for a family member with an illness first identified in the employee’s or relative’s country of origin;
  • Questioning, without merit, the professional dedication of employees caring for individuals with disabilities who are at higher risk of severe illness from COVID;
  • Commenting that older employees providing caregiving should be the one receiving care given the employees’ age, or asking whether the recipient of care is “worth the risk,” given older individuals’ higher risk of severe illness from COVID.

Retaliation and Caregiving

Federal employment discrimination laws protect individuals against any form of retaliation that would be reasonably likely to deter someone from engaging in protected activity.

Unlawful retaliation against employees with caregiving responsibilities may occur, for example, if employer refuses to recall an employee from furlough because she filed a pregnancy discrimination complaint.  It would also be unlawful retaliation for an employer to change the schedule of an employee with young children to conflict with school drop-off and pick-up times because she participated in a discrimination investigation.

Employers should review and understand the EEOC’s guidance on caregiver discrimination.  They might consider incorporating caregiver issues into their written policies and/or training employees, particularly managers, about these issues, to ensure they are complying with the law.  EEOC policy guidance, fact sheet as well as its best practices document may help in that regard.  As with any matter this complicated, employers may also wish to seek legal counsel before taking any significant steps with an employee with caregiving responsibilities related to COVID or otherwise.