A New Protected Class? Not Quite, but the EEOC Is Looking Out for Workers with Caregiving Obligations

On March 14, 2022, the EEOC issued a technical assistance document, The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws, which provides guidance as to ways equal employment opportunity laws enforced by the EEOC (“EEO laws”) may apply to caregivers. In conjunction with this, the EEOC added a Section I (“Caregivers/Family Responsibilities”)  to “What You Should Know About COVID-19…,” its primary COVID-19 related guidance document. Enforcement guidance issued by the EEOC in 2007, previously addressed circumstances in which discrimination against caregivers might constitute unlawful disparate treatment. The EEOC has issued this new guidance in response to how the COVID-19 pandemic has particularly affected employees with caregiver responsibilities.

While “caregiver” is not a protected class per se, the EEOC has adopted the term “caregiver discrimination” and explains:

Caregiver discrimination violates the laws enforced by the EEOC if it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, national origin, disability, age (40 or older), or another characteristic covered by federal employment discrimination laws. Caregiver discrimination also is unlawful if it is based on the caregiver’s association with an individual with a disability, or on the race, ethnicity, or other protected characteristic of the individual receiving care.

The new guidance materials, both presented in the form of FAQs, discuss various scenarios in which easily drawn and even well intentioned assumptions about employees with caregiving duties could lead to illegal discrimination or harassment. Examples provided by the EEOC include:

• Associational discrimination against a worker who has a family member with a disability;
• Gender discrimination against a male worker by failing to provide caregiving leave, flexible work arrangements, or exceptions to return-to-work policies on a gender neutral basis;
• General discrimination by refusing to hire or promote a female employee based on assumptions that she would be primarily focused on caring for her young children;
• Pregnancy discrimination by refusing to employ a pregnant employee based on the belief the employee would be (or should be) primarily focused on a safe and healthy pregnancy, not work;
• Pregnancy discrimination by unilaterally requiring a pregnant employee to telework, or adjusting the employee’s schedule to reduce contact with customers and colleagues, even if motivated by a desire to keep the employee safe;
• Race discrimination by only requiring workers of a certain race to seek requests for leave in advance, while allowing workers of other races to make requests without notice;
• Age discrimination by unilaterally determining that an employee above a particular age should work exclusively from home due to concerns about their health;
• Unlawful hostile work environment by accusing female employees, without justification, of being preoccupied with keeping their families safe from COVID-19, distracted from their professional obligations, and insufficiently committed to their jobs, or criticizing or ridiculing male employees for seeking to perform, or performing, caregiving duties, such as taking leave to care for a child who is quarantining after potential COVID-19 exposure, or limiting overtime or overnight travel, based on gender stereotypes of men as breadwinners and women as caretakers.

The issuance of this guidance signals that the EEOC will be receptive to complaints of discrimination by individuals who believe that the demands of their caregiving responsibilities have influenced employers’ decisions about them, or who believe that they have been targets of harassment because of their caregiver responsibilities. Employers may, therefore, want to consider implementing the EEOC’s best practices suggestions, including:

• Training managers about the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities;
• Creating and distributing a policy addressing the types of conduct that might constitute unlawful discrimination or retaliation against caregivers (including defining the term “caregivers”);
• Informing managers of the employer’s work-life policies, so they can be familiar with them and supportive employees taking advantage of them; and
• Examining hiring, retention, and termination practices to determine whether they may disadvantage employees with caregiver responsibilities.