EEOC Says Workers May Have Ongoing Pandemic-Related Caregiving Duties

The Equal Employment Opportunity Commission (EEOC) recently issued guidance for employers on preventing unlawful caregiver discrimination related to the COVID-19 pandemic.

Even if an employer means well, assumptions about caregivers may result in illegal discrimination when employment decisions are made based on a worker's protected characteristics, such as age, disability, genetic information, national origin, race, religion and sex (including gender identity, sexual orientation and pregnancy), according to the updated technical guidance, which was issued March 14.

"As the pandemic evolves and the country moves to a new normal, we cannot assume caregiving obligations have ended," said EEOC Chair Charlotte Burrows. "By ensuring that caregivers know their rights and employers understand their responsibilities, the EEOC will help ensure that America's recovery from the pandemic is an equitable one."

Anthony Dick, an attorney with Fisher Phillips in Cleveland, noted that human resource professionals, corporate in-house counsel and front-line managers continue to grapple with issues surrounding employees' caregiving obligations in the wake of the pandemic.

Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and other employment laws don't explicitly cover caregivers, he noted, but employers can still run afoul of these laws when they act on assumptions or stereotypes or when they apply policies unevenly based on protected traits. 

Katie Bayt, an attorney with Ogletree Deakins in Indianapolis, said there are several key takeaways for employers from the EEOC's latest update.

"Importantly, caregiving responsibilities have been front and center during the pandemic, and even as we navigate a new normal, these responsibilities and their impact are not likely to fade away anytime soon," she said.

Examples Provided

The EEOC's new technical assistance reminds employers to ensure their policies and practices support employees and job applicants who have caregiving responsibilities, Dick said. Numerous examples of potentially unlawful conduct are provided, such as declining to assign high-profile or demanding projects to a female caregiver based on gender stereotypes that the female caregiver cannot, should not or would not want to work extra hours or be away from her family if a relative contracted COVID-19. According to the guidance, denying a male co-worker the option to telework to care for a child or parent would also be unlawful if such requests are approved for similarly situated female employees. 

The technical assistance explains that an employer can't refuse to hire a job applicant who is the primary caregiver for a person with a disability who is at high risk of complications from COVID-19 out of fear that the employer's health care costs would rise. Additionally, an employer can't refuse to promote a female employee based on an assumption that women will primarily focus on caring for their children if they are quarantined or must attend school remotely. 

The EEOC also published a refresher of its 2007 guidelines on discrimination against employees and job seekers with family caregiving responsibilities. The new document supplements earlier EEOC policy guidance, a fact sheet and a best practices document for employers, according to the agency.

"In essence, the EEOC is reminding employers the commission is out there and will be actively working on behalf of protected employees while also looking to refresh companies on what they should—and can't—do," said Paul Patten, an attorney with Jackson Lewis in Chicago.

HR's Role

"Given the EEOC's acknowledgment that it has received a sharp increase in COVID-related charges in general over the last year—and this latest guidance emphasizing caregiver discrimination—employers should use the guidance as a good road map to help avoid EEO [equal employment opportunity] claims," Dick said. 

The EEOC's accompanying best practices document also includes helpful suggestions about how employers can incorporate caregiver issues into their existing employment policies.

[Related SHRM article: Supporting Employee Caregivers.]

Bayt said employers should ensure that any policies, practices or employment decisions related to caregiving responsibilities do not unlawfully take into consideration an employee's protected characteristics.

From a practical standpoint, she said, employers should regularly review their handbooks, policies and HR practices and ensure they are consistently enforcing nondiscrimination, anti-harassment and anti-retaliation policies for employees who have caregiving responsibilities and for those who do not.

Critically, business leaders must train their managers and HR representatives on these guidelines and maintain a robust open-door policy, Bayt added.

"Demonstrating leadership from the top on the importance of an inclusive workplace culture—including one that supports employees and applicants who have caregiving responsibilities—is key," she said.