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U.S. Equal Employment Opportunity Commission (EEOC) Issues Guidance Related to COVID-19 Pandemic and U.S. Equal Employment Opportunity Commission (EEOC) Issues Guidance Related to COVID-19 Pandemic and

U.S. Equal Employment Opportunity Commission (EEOC) Issues Guidance Related to COVID-19 Pandemic and Caregiver Discrimination

On March 14, 2022, the EEOC issued technical guidance related to COVID-19 pandemic and caregiver discrimination. While the EEOC’s technical guidance does not have the force and effect of law, and is not meant to bind the public, it is a helpful tool to provide insight and clarity into existing requirements and EEOC policy.

The technical guidance covers a wide range of caregiver-related topics related to the COVID-19 pandemic and potential discriminatory issues that could arise. The guidance states that, “even as the pandemic evolves, the challenge of juggling work and caregiving obligations remains,” and “[d]iscrimination against a person with caregiving responsibilities may be unlawful under federal employment discrimination laws enforced by the [EEOC].”
 

Who Is Protected?


Caregiver discrimination can be a violation of federal (and, in many cases, likely state) employment discrimination law when based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability, or genetic information (such as family medical history). Caregiver discrimination can also be a form of unlawful discrimination if it is based on an applicant’s or employee’s association with an individual with a disability, within the meaning of the ADA, or on the race, ethnicity, or other protected characteristic of the individual for whom care is provided. Finally, caregiver discrimination can violate these laws if it is based on intersections among these characteristics.
 

Prohibited Discrimination


The guidance provides many examples of potential violations of federal law, including discriminating against female applicants or employees based on the assumption that they should be providing care for young children or assisting in remote schooling; male applicants or employees based on the assumption that men are breadwinners who should not be providing care to young children; or LGBTQI+ applicants or employees by imposing more stringent requirements or procedures to prove marital or familial relationships necessitating the provisioning of care, if such requirements are not imposed on other applicants or employees.
 

Takeaways

 
  • The guidance indicates that employers are not generally required to provide telework as a reasonable accommodation to caregivers—however, employees who are unable to perform their jobs because of pregnancy, childbirth, or related medical conditions must be treated the same as other employees unable to temporarily perform job duties. 
  • Older employees are likewise not entitled to telework because of their age. Yet, the ADEA requires employers to refrain from discriminating against older workers based on their age or age-related stereotypes.
  • Employers are not required to excuse poor performance even if it results from an employee’s caregiving responsibilities during the COVID-19 pandemic. However, employers must not apply performance standards inconsistently based upon protected characteristics.
  • The EEOC effectively put employers subject to its jurisdiction on notice that it is aware of a broad range of potentially discriminatory action and provided a road map for 1) employers to ensure these activities do not occur within their workplaces; or 2) potential charging parties with the framework of a fledgling claim. 
  • Employers, and particularly human resources department heads, should consider training managers and HR representatives on these guidelines to help minimize the risk of claims. 
For more information, contact Cameron D. Ritsema or the Workplace Solutions attorney with whom you most frequently work.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
 
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