Over the past two years, we have heard much about the burden on “caregivers” during the pandemic. Whether it was caring for school age children while school was remote and daycare closed, or caring for elderly family members, the pandemic has cast a light on caregivers. Even now, many employees live in households with people who are immunocompromised and may be more reluctant to return to the workplace or to engage with others or travel for work in the manner they did in the past. Other employees may have young children who cannot yet be vaccinated against COVID-19 or are still attending school virtually. In March 2022, the U.S. Equal Employment Opportunity Commission released guidance addressing situations in which caregiver discrimination may be unlawful under federal employment discrimination laws.
To be clear, federal employment discrimination laws do not prohibit discrimination based solely on caregiver status. There are instances, however, where claims related to caregiver status can run afoul of these laws. Specifically, it would violate federal employment discrimination laws for an employer to take an action based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age, disability, or genetic information that are a result of stereotypes or judgments about people with caregiving responsibilities. This type of conduct also may violate the Family and Medical Leave Act or state or local anti-discrimination laws.
Employers should be aware of instances where employment decisions that take into account caregiver status could be discriminatory, including:
- An employer should not refuse to promote a female employee based on assumptions that, because she is female, she would focus primarily on caring for her young children while they attend school remotely. Similarly, an employer should not deny men leave or permission to work a flexible schedule to care for a family member if the employer grants such requests when made by similarly situated women. Even if a decision is well-intentioned, employers may not base employment decisions on gender stereotypes.
- An employer should not refuse an employee’s request for unpaid leave to care for a parent with long COVID while approving other employees’ requests for unpaid leave to handle other personal responsibilities. Employees with caregiving responsibilities for an individual with a disability are protected from discrimination based on their association with a care recipient.
- Employers may not unilaterally require pregnant employees to telework or adjust their schedules to limit contact with others whose COVID-19 or vaccination status may be unknown. Employers may, however, offer to discuss whether pregnant employees may wish to voluntarily adopt these or other measures.
Employers should make sure their supervisors and managers are regularly trained on their anti-discrimination and leave policies to ensure that they are well-equipped to address workplace issues, respond in accordance with these policies, and to avoid irregularities in the application of such policies.