On March 14, 2022, the EEOC released new guidance related to caregiver discrimination and the COVID-19 pandemic. The guidance reaffirms that simply because a caregiver is not a protected class in and of itself, an employer still maintains a responsibility to not discriminate against an employee who is a caregiver based on an employee’s protected characteristics, such as sex (which includes pregnancy, sexual orientation, or gender identity and the stereotypes associated with said identity), race, color, religion, national origin, age, disability, or genetic information. The guidance additionally notes that employers cannot discriminate based on a combination of those protected characteristics (i.e., discriminating against an employee based on both their race and sex). Most importantly, the guidance iterates that the legal protections are not only available to employees with caregiving responsibilities for children, but that the protections are available to all employees with caregiving responsibilities in general, including care for children, spouses, partners, relatives, individuals with disabilities, or others.

Sex-Based Discrimination Examples

The EEOC’s technical assistance provides numerous examples of potentially unlawful conduct. With regards to discrimination due to sex and pregnancy, an employer may not:

• Reassign demanding or high-profile projects to non-female employees based on assumptions that female caregivers cannot, should not, or would not want to work extra hours or be away from their families if a family member is infected or exposed to COVID-19.
• Refuse to hire pregnant applicants or take adverse employment action against pregnant employees based on “assumptions that these individuals…should be primarily focused on ensuring safe and healthy pregnancies.”
• Deny male employees permission to telework or to adjust their schedules to enable them to perform pandemic-related caregiving obligations, such as caring for young children or parents, while granting such requests when made by similarly situated female employees.

Disability-Based Discrimination Examples

The guidance also provides examples of discrimination and harassment under the Americans with Disabilities Act (ADA) or Rehabilitation Act based on a caregiver’s association with an individual with a disability for whom they provide care. The guidance articulates that an employer may not:

• Decline an applicant because the applicant has a spouse whose disability increases the likelihood of them experiencing severe COVID-19 symptoms, and the employer does not want to potentially incur higher health insurance costs, or the employer refuses to add the spouse to health insurance coverage when such coverage is made available to other employee’s spouses.
• Refuse to promote an employee who is the primary caregiver of a child with a mental health disability that worsened during the pandemic on the assumption that the employee will be unable to adequately perform their duties due to their caregiver obligations.

Race or National Origin Examples

Regarding COVID-related discrimination based on a caregiver’s race or national origin under Title VII, the guidance uses the following examples of what an employer cannot do:

• Ask for additional proof of an Asian employee’s COVID-19 vaccination status because COVID-19 was first identified in an Asian country.
• Require employees of a specific race submit written requests for accommodations and wait several days before being provided a response, while similarly situated employees of other races can make such requests verbally.

Age Based Discrimination Examples

The guidance made it clear that the Age Discrimination in Employment Act (ADEA) does not give older employees a right to reasonable accommodations for caregiving or any other purpose. However, the ADEA requires employers to refrain from discriminating against older caregivers based on their age. For example, an employer cannot require an older employee to accept a reduced work schedule out of concern that they may not have the stamina to maintain their job duties while taking care of a child or grandchild recovering from COVID-19.

The Role of State Law

While this EEOC guidance focused on employee protections under Title VII, the ADA, and the ADEA, employers should also research their individual state and local anti-discrimination and leave of absence laws, as these laws may provider broader protections for caregiver employees. 

Employers should regularly review their policies and HR practices to ensure they are consistently enforcing anti-retaliation, anti-harassment, and nondiscriminatory practices for employees who have caregiving responsibilities. 

Our Labor and Employment attorneys can answer any questions you may have regarding this updated guidance. Please reach out with any questions or for further clarification.