The Equal Employment Opportunity Commission (EEOC) released new guidance regarding how discrimination against people with COVID-19-related caregiving responsibilities may violate federal antidiscrimination laws. While federal law does not prohibit discrimination based solely on caregiver status, caregiver discrimination violates federal employment discrimination law when it is based on one or more protected characteristics such as:
- 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).
The guidance states that caregiver discrimination is also unlawful if it is based on an applicant’s or employee’s association with an individual with an ADA-covered disability, or on the race, ethnicity, or other protected characteristic of the individual for whom care is provided.
Finally, caregiver discrimination violates federal law if it is based on intersections among protected characteristics (for example, discrimination against Black female caregivers based on racial and gender stereotypes, or discrimination against Christian female caregivers based on religious and gender stereotypes).
The EEOC provided several examples of how this discrimination could occur including the following:
- It would violate the law if an employer refused to hire a female applicant or refused to promote a female employee based on assumptions that, because she was female, she would (or should) focus primarily on caring for her young children while they attend school remotely, or on caring for her parents or other adult relatives. Employers also may not penalize female employees more harshly than similarly situated male employees for absences or missed deadlines due to pandemic-related caregiving duties.
- It would be unlawful for an employer to deny men leave or permission to work a flexible schedule to care for a family member with COVID-19 or to handle other pandemic-related caregiving duties if the employer grants such requests when made by similarly situated women.
- Employers may not subject Asian employees with caregiving responsibilities to more scrutiny by requiring additional proof of Asian caregivers’ COVID-19 vaccination status or additional proof of their family’s COVID-19 vaccination by an independent third party (someone other than the employer or the employer’s agent), because COVID-19 was first identified in an Asian country.
- Employers may not impose more burdensome procedures on LGBTQI+ employees who make caregiver-related requests, such as requiring proof of a marital or other family relationship with the individual needing care, if such requirements are not imposed on other employees who make such requests.
If you have any questions about responding to an employee with caregiver responsibilities, please contact your Xenium HR Business Partner.