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:

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.

Source: Spilman Thomas & Battle PLLC – Sarah E. Kowalkowski

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