The EEOC has created a new technical assistance document to address discrimination against caregivers and updated its previous guidance to include an additional section on those issues. During the pandemic, millions of employees with caregiving responsibilities for children, spouses, older relatives, and others have had to adjust to quarantine requirements, abrupt changes in work locations/schedules, and unexpected closures or schedule changes at schools, care facilities, and other businesses.

Building upon previous guidance, the new documents outline when discrimination against applicants and employees related to pandemic caregiving responsibilities can violate federal law: when it is based on a protected characteristic such as sex (including pregnancy, sexual orientation, or gender identity), race, color, national origin, age (40 or older), disability, or genetic information (such as family medical history); or when it is based on the applicant’s or employee’s association with an individual with a disability or on the protected characteristic of the individual for whom care is provided.

Some real-world examples provided by the EEOC of unlawful discrimination against caregivers include the following:

• If an employer refused to hire a female applicant or refused to promote a female employee based on assumptions that, because she is female, she would focus primarily on caring for children while they quarantine or attend school remotely.
   
• If an employer imposes more burdensome procedures on LGBT employees who make caregiver-related requests, such as requiring proof of a marital or other family relationship with the individual needing care, when they do not have similar requirements for other (heterosexual) employees.
   
• If an employer refused to hire an applicant who is the primary caregiver of an individual with a disability who is at higher risk of complications from COVID-19 out of fear that the employer’s health insurance costs would increase or based upon the assumption that the individual would not be fully available to colleagues and clients or committed to the job because of those caregiving obligations.
   
• If an employer refuses to approve pandemic-related leave requests based on the gender, race, or national origin of the employee with caregiving responsibilities if it approves such requests when made by similarly-situated employees of another gender, race, or national origin.
   
• If an employer requires an older worker who is caring for a grandchild while the child’s parent recovers from COVID to accept a reduced schedule out of concern that, because of the worker’s age, he or she lacks the stamina to perform full-time job duties while also caring for a young child.

The EEOC specifically notes, however, that employers are not required to excuse poor performance resulting from employees’ caregiving duties, as long as they don’t apply performance standards inconsistently.

As with other kinds of discrimination, harassment related to employees’ pandemic caregiving responsibilities may likewise violate federal law. Employers should develop and distribute appropriate policies and complaint procedures and train managers to recognize and respond to harassing conduct, including that which occurs in-person or online, at on-site or remote workplaces, and while teleworking.

By Rebecca D. Bullard, rbullard@dsda.com