On March 14, 2022, the EEOC released a new technical assistance guidance document entitled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law.”
Essentially, the guidance reiterates that an employer may not discriminate against an applicant or employee under federal law on the basis of protected classes such sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability or genetic information. However, the purpose of the guidance is to illustrate how discrimination on the basis of a protected class can occur, possibly even inadvertently, if employers make assumptions and decisions based on an applicant’s or employee’s caregiving obligations due to the Covid-19 pandemic.
For example, the guidance says 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. The guidance goes on to explain that 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.
Likewise, 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. It also would be unlawful, for example, for an employer to refuse requests for exceptions from return-to-work policies or attendance policies made by men with caregiving responsibilities, based on their gender.
The guidance also provides that LGBTQI+ applicants and employees are also protected from “caregiver” discrimination based on sex. For example, 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. Employers also may not, for example, deny caregiving leave to an employee with a same-sex partner based on the sexual orientation or gender identity of the employee or the employee’s partner.
Importantly, the guidance makes clear that the federal laws enforced by the EEOC do not provide employees with a right to accommodations to handle “caregiving” duties. Nevertheless, other reasonable accommodation laws under the ADA and state laws still apply if an employee has his or her own disability or medical condition (including pregnancy, childbirth, or related medical conditions) that impact the employee’s ability to perform the essential functions of the job.
Employers can obtain more information about the EEOC’s technical assistance guidance here.