New EEOC Guidance Highlights Potential COVID-19 Caregiver Discrimination Claims

On March 14, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a new technical assistance document (the “Guidance”) addressing the interplay between existing federal employment discrimination principles involving caregivers to situations specifically related to the COVID-19 pandemic, which has presented unique challenges for employees juggling competing job and caregiving demands. 

The Guidance supplements earlier EEOC enforcement guidance, fact sheets, and best practices documents for employers, all of which address caregiver discrimination under a wide variety of circumstances.

The Guidance, which takes the form of FAQs providing numerous examples of unlawful discrimination and harassment arising from caregiver obligations, explains that caregiver status is not itself a protected class under federal employment laws.  However, employment decisions against employees who are caregivers may constitute unlawful discrimination when they are made based on the employee’s protected characteristics, such as sex (including pregnancy, sexual orientation, and gender identity), race, color, religion, national origin, age, or disability, or based on the employee’s association with an individual with a disability (within the meaning of the Americans with Disabilities Act (“ADA”)).  The Guidance further confirms that caregiver discrimination violates federal law when it is based on intersections among several protected characteristics – e.g., discrimination against Black female caregivers based on racial and gender stereotypes.

As the Guidance only addresses employees’ rights under the ADA, Title VII of the Civil Rights Act (“Title VII”), and the Age Discrimination in Employment Act (“ADEA”), employers should also consider whether there are any broader protections available to employees under state and local laws.

Caregiver Discrimination Based on Sex, Sexual Orientation, and Pregnancy

The Guidance explains that unlawful discrimination against male and female caregivers based on gender-based stereotypes and pregnancy may arise in a variety of circumstances.  Such examples include:

• refusing to hire or promote a female applicant or employee based on “assumptions that, because she was female, she would (or should) focus primarily on caring for her young children…or on caring for her parents or other adult relatives”;
• refusing to assign female caregivers projects that require extra hours or travel based on the employer’s assumptions that “female caregivers cannot or would not prefer to work extra hours or be away from their families if a family member is infected with or exposed to COVID-19”;
• denying male employees leave or a flexible work schedule to care for family members with COVID-19 or to handle other pandemic-related caregiving responsibilities, if the employer grants these accommodations to similarly situated female employees;
• refusing to hire or promote pregnant applicants or employees based on assumptions that they “will or should be primarily focused on ensuring safe and health pregnancies”;
• allowing employees to harass pregnant co-workers for taking precautions in the workplace to avoid COVID-19 exposure; and
• treating employees who are temporarily unable to perform job duties due to pregnancy, childbirth, or related medical conditions, differently from other employees who are temporarily unable to perform job duties because of COVID-19 or some other illness.

In addition, the Guidance reiterates that it is unlawful for employers to discriminate against LGBTQI+ applicants and employees with caregiving responsibilities based on their sexual orientation or gender identity.  Examples of this unlawful discrimination include:

• requiring LGBTQI+ employees who make caregiver-related requests to follow more burdensome procedures, such as requiring proof of a marital relationship with the individual needing care, if this is not required of similarly situated employees; and
• denying caregiver leave to an employee with a same-sex partner based on the employee’s or the partner’s sexual orientation or gender identity.

Discrimination Against Employees Responsible for Care of Individuals with Disabilities

As to employees or applicants associated with an individual with a disability (as defined under the ADA), the Guidance explains that these employees are protected from discrimination based on their associations with the recipient of care, which may include some individuals with active COVID-19 illness or lingering symptoms (i.e., “long COVID”).  For example, it would be unlawful discrimination under the ADA for an employer to:

• refuse an employee’s request for unpaid leave to care for a family member with “long COVID”, if other employees’ requests for unpaid leave to handle other personal responsibilities have been permitted;
• refuse to promote an employee who has primary caregiving responsibilities for a child with a mental health disability that was exacerbated by the pandemic; and
• refuse to hire an applicant because their spouse has a disability that puts the spouse at higher risk of severe COVID-19 illness and the employer fears that its health insurance costs will increase if the spouse is added to its healthcare plan.

Race and National Origin Caregiver Discrimination

Discrimination arising from race- or ethnicity-based stereotypes or generalities related to the COVID-19 pandemic is also unlawful.  The Guidance provides the following examples, among others, of this kind of unlawful discrimination:

• requesting additional proof of an Asian employee’s COVID-19 vaccination status simply because COVID-19 was first identified in an Asian country;
• using different standards or requiring different procedures for COVID-19-related caregiving requests based on an employee’s or care recipient’s race or national origin; and
• denying an employee’s request for leave to care for a family member from another country who was recently diagnosed with COVID-19 because a COVID-19 variant was first identified in the family member’s country of origin.

Workplace Accommodations for Older Employees

The Guidance further confirms that the ADEA does not give older employees a right to reasonable accommodations for caregiving or any other purpose.  However, the ADEA does prohibit employers from discriminating against older employees based on their age or age-related stereotypes.  For example, an employer may violate the law by requiring an older employee to accept a reduced schedule out of concern that, because of the employee’s age, “the worker lacks the stamina to perform full-time job duties effectively” while also caring for a young grandchild whose parents are recovering from COVID-19.  Moreover, the Guidance highlights that employers may, at their discretion, grant older employees’ requests for leave, flexible schedules, and remote working arrangements to allow them to perform pandemic-related caregiving duties.

Poor Performance by Employees with Pandemic-Related Caregiving Responsibilities

The Guidance clarifies that employers are not required under federal law to excuse poor workplace performance resulting from an employee’s caregiving duties.  For example, an employer who typically issues written warnings to employees who are consistently late to work may issue the same warnings to employees who are late due to pandemic-related caregiving obligations.  An employer may not, however, inconsistently apply penalties to employees based on an employee’s protected characteristics.

Unlawful Workplace Harassment and Retaliation Related to Pandemic-Related Caregiving Responsibilities

In addition to the above examples of unlawful discrimination, the Guidance also provides examples of unlawful harassment and retaliation related to employees’ pandemic caregiving responsibilities, which can occur both on-site and in the remote workplace.  Examples of this prohibited conduct include:

• ridiculing female employees for focusing on their careers instead of their families during the pandemic or accusing them of being preoccupied with keeping their families safe from COVID-19 and thus “insufficiently committed to their jobs”;
• criticizing male employees for performing pandemic-related caregiving duties based on gender stereotypes;
• making offensive comments about or asking personal questions of LGBTQI+ employees after they request leave to care for a same-sex partner who has COVID-19 symptoms;
• insulting Asian employees caring for family members with COVID-19 simply because COVID-19 was first discovered in an Asian country;
• mocking employees caring for individuals with disabilities who are at a higher risk of severe COVID-19 illness for taking precautionary measures to avoid infection and questioning, without justification, their professional dedication;
• criticizing older employees who care for their grandchildren based on the assumption that these employees “should be receiving care, not providing it, given the employees’ age”;
• changing the schedule of an employee with young children to conflict with school drop-off and pick-up times because the employee participated in a discrimination investigation; and
• transferring a manager who is the primary caregiver to an older relative living locally to a distant office for refusing to obey a discriminatory order.

The Guidance explains that employers can help prevent this kind of harassment by, among other things, periodically distributing harassment policies and procedures to all employees and training employees on these policies and procedures.  As to unlawful retaliation, the Guidance reminds employers that they should, among other things, train all employees with managerial responsibilities about their non-retaliation obligations under the law and notify complainants and other employees involved in discrimination investigations about their right not to be subject to retaliation and the procedures for reporting the same.

In sum, employers should carefully review the Guidance, particularly given that the EEOC has signaled that such claims will be an enforcement priority, and make any necessary revisions to their policies and procedures.