EEOC Issues New Guidance on COVID-19 and Caregiver Discrimination

Author: Emily Scace, Brightmine Legal Editor

March 16, 2022

Discrimination against people with caregiving responsibilities may violate federal antidiscrimination laws, according to new guidance issued by the Equal Employment Opportunity Commission (EEOC) - a situation intensified by the COVID-19 pandemic.

Although the pandemic has receded from its peak, "the challenge of juggling work and caregiving obligations remains," the guidance states, pointing to ongoing challenges such as childcare availability, the lack of approved vaccines for very young children, and the need to protect immunocompromised people and those at high risk of severe complications from COVID-19.

According to the guidance, although federal law does not prohibit discrimination based solely on caregiver status, caregiver discrimination becomes unlawful when it is based on one or more protected characteristics such as:

  • Sex (including pregnancy, sexual orientation and gender identity);
  • Race or color;
  • Religion;
  • National origin;
  • Age (40 or older);
  • Disability; or
  • Genetic information (such as family medical history).

Caregiver discrimination is also unlawful when it is based on an individual's association with a person with a disability or on the race, ethnicity or other protected characteristic of the individual for whom care is being provided.

For example, the guidance notes that an employer could be liable for gender discrimination if it refused to hire or promote a woman, or withheld demanding assignments, because of gender-based assumptions about her caregiving duties.

Other situations that may violate federal antidiscrimination laws include:

  • Imposing more burdensome requirements on LGBTQ+ individuals who request caregiving-related accommodations than on heterosexual individuals who make similar requests;
  • Denying a male employee leave to attend to caregiving duties while granting similar requests from female employees;
  • Refusing an employee's request for unpaid leave to care for a parent with long COVID that qualifies as a disability, while approving other employees' requests for unpaid leave to handle personal responsibilities; and
  • Making age-related assumptions that an older employee caring for a grandchild whose parent has COVID-19 lacks the stamina to perform full-time job duties.

Employers are not required to excuse poor job performance that results from caregiving duties, the guidance emphasizes. However, performance standards must be applied consistently to employees regardless of their race, gender or other protected characteristics. Moreover, although caregivers do not have a legal right to reasonable accommodations such as telework, flexible schedules or reduced overtime, an employer may consider providing these accommodations to employees who request them at its discretion - provided that it exercises that discretion in a non-discriminatory manner.