Under federal law, employers cannot decide on their own to stop assigning demanding projects to an employee simply because she is caring for children or family members, even if the goal is help her improve her work/life balance.
Employers cannot grant flexible working hours to female caregivers, but deny them to male caregivers; they are also prohibited from refusing to hire a candidate because of their relationship with a person with a disability.
Last week, the U.S. Equal Employment Opportunity Commission reiterated those rules, and more, when it updated its guidance on federal discrimination laws to reflect new pressures. on workers with caretaking duties during the pandemic.
Related: The Financial Costs of Unpaid Care
Released following reports that women are returning to the workforce in fewer numbers than men, updated guidelines provide workers and employers with much-needed guidance, even if it comes late in the game, labor lawyers say.
As jurisdictions across the country continue to consider laws that provide even broader job protections for caregivers — in some cases, giving them the right to sue employers for alleged violations — attorneys say employers who don’t already know the EEOC’s position might want to brush up soon.
This isn’t the first time the EEOC has looked at how federal discrimination laws like Title VII or the Americans with Disabilities Act apply to caregivers. In 2007, the agency clarified that while these laws do not explicitly prohibit employers from discriminating against workers for being caregivers and having caring duties, they do prohibit employers from discriminating against workers based on gender, disability, age, of their race and other ‘protected’ categories – stereotypes about who can often intersect with stereotypes about caregivers. The agency has issued additional guidance in 2009.
Workers and employers needed up-to-date guidance on this topic because the pandemic has dramatically changed the nature of work for so many, said Wendy Musell, who represents workers as a sole practitioner. She is also an attorney at Levy Vinick Burrell Hyams, based in Oakland, California.
“The demands of work and home have collided in very particular ways” during the pandemic, Musell said. “Workers who had very young children who couldn’t be vaccinated and who weren’t in school – I think the demands on them increased dramatically while they were still required to perform jobs full-timers who may not have had the flexibility to take on all of this at once.
While Musell said she wishes the guidelines had come sooner, she added that the “very specific examples” of conduct in the EEOC workplace that could be construed as discrimination, harassment or retaliation against caregivers comes in handy at a time when many are facing uncharted territory.
She pointed to the agency’s position that it would be illegal, for example, for an employer to refuse to promote an employee because the employee has a disabled child, assuming the employee would not have the bandwidth. necessary to do the job well. The example is timely, the lawyer said, given “the increase in mental health symptoms among children while they were at home and not at school.”
Esther Lander, a partner at Akin Gump Strauss Hauer & Feld who represents employers, said that during the pandemic, many of her clients “have been extremely flexible with caregivers, knowing they’re dealing with school closures, laying in quarantine and trying to work remotely. — in many cases at the same time.
The EEOC explained that this flexibility, when applied unevenly, could actually be considered discriminatory behavior. “If an employer only did this for female employees assuming they are the caregivers, and didn’t give the same flexibility to male employees who have caregiver responsibility, that’s how it becomes gender discrimination” against men, Lander said, citing the federal orientation.
As of November 2020, at least 195 states and local jurisdictions had laws prohibiting employers from discriminating against workers because of their “family status” or “caring responsibilities,” according to a report published by the Center for WorkLife Law at the University of California Hastings College of the Law. Areas
Many of these laws, which exist in New York, Delaware, Minnesota, Alaska and cities like Chicago and Boston and cover nearly 50 million employees, allow employees to sue their employers for damages. .
These laws provide more protections for workers than federal discrimination laws, Lander said, because the latter do not explicitly recognize “caregivers” as a protected class, unlike race, color, religion, sex and national origin or disability. This means that federal discrimination laws only protect caregivers if they face discriminatory behavior that is also based on their membership in one of these protected classes.
“Let’s say there are two women and the employer sends one of the women on a business trip and offers her an opportunity for growth. She is single, has no children,” Lander said. The employer “does not send the other woman on a business trip on the assumption that because she is a caregiver she is probably not accessible, not available to do so”.
The second woman would have a hard time making a claim under federal law because she was likely “stereotyped as someone who is a caregiver,” and not discriminated against because of her gender, Lander said. But under one of the local laws that make caregivers a protected class, the woman could file a discrimination claim simply by citing her status as a caregiver.
Despite this advantage, workers in these jurisdictions do not necessarily file a significant number of lawsuits. another report by the Center for WorkLife Law, released last June, found that in Alaska, Delaware, Minnesota and New York, workers have filed just 71 lawsuits against private employers since the laws took effect , which averages one lawsuit per state per year.
Jessica Stender, policy director and associate legal director at Equal Rights Advocates, which is proposing similar legislation in California, said she expects pushback from the state’s business community, in part because she fears such a law will lead to an increase in frivolous litigation. Citing the WorkLife Law study from last June, Stender said, “It really hasn’t impacted the existing laws that are on the books.”
In a letter opposing the California legislation last year, a coalition of business groups, including the state Chamber of Commerce, also argued that a state law making caregivers a protected class would limit also the ability of employers to enforce policies such as attendance rules. “Any adverse employment action taken by the employer could be challenged as discriminatory on the basis of ‘caring responsibilities,'” the letter states.
“This will significantly limit an employer’s ability to resolve workplace discipline issues, maintain stability and eliminate any issues without costly litigation.”
But Stender argues the bill could help employers. “I think this is an area where it is really in the interests of businesses to have a clear rule, so that it is clear to employers that it is illegal to discriminate against someone or to treat someone differently because of her caring responsibilities,” she said.
“Because otherwise, they may be engaging in illegal behavior, and they may be potentially liable because there is…a connection to a protected class, but it’s not explicitly clear to them.”