EEOC re-emphasizes caregivers’ potential for discrimination | Husch Blackwell LLP

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Although the term “caregiver” is not identified as a protected category under federal Equal Employment Opportunity (EEO) laws, workplace decisions that negatively impact applicants to a job and employees who are also caregivers can still lead to claims of discrimination. On March 14, 2022, the Equal Employment Opportunity Commission (EEOC) released new guidance and updated its COVID-19 FAQs reiterating that the pandemic has disrupted work and personal responsibilities for employees and has created challenges for people with caring responsibilities like never before. The guidelines continue to warn employers that discrimination against caregivers may be illegal under federal employment discrimination laws.

How are carers protected by anti-discrimination laws?

The new guidelines acknowledge that caregiver status is not a protected category, but simultaneously announce that employers nonetheless have a responsibility not to discriminate against caregivers under Title VII, of the Age Discrimination in Employment Act (ADEA) , the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA) based on their sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 years or older), disability or genetic information (such as family medical history). The guidelines also explain that caregiver discrimination can occur under the ADA if an employer discriminates against an applicant or employee because of their association with a person with a disability and to whom they provide care.

The guidance provides some useful examples of potential discrimination of caregivers based on gender and pregnancy:

  • Denying male caregivers leave or flexible work hours to care for a family member, if the employer provides such accommodations to female employees in the same situation;
  • Ridicule men for performing caring duties due to the pandemic;
  • Refusing to hire a candidate or refusing to promote an employee based on the assumption that, because she is a woman, she would (or should) focus primarily on caring for her young children or his or her parents or other adult relatives;
  • Impose more onerous procedures on LGBTQI+ employees who make caregiver-related requests, such as requiring proof of a spousal or family relationship with the person in need of care; Where
  • Allow harassment of pregnant employees who telecommute or maintain physical distance from co-workers to avoid exposure to COVID-19.

Similarly, the councils provide examples of carer discrimination based on disability or association with a disabled person:

  • Discriminate against a caregiver because of their association with a person with a disability, including long-distance COVID-19;
  • Refuse to promote an employee who primarily cares for a mentally disabled child whose disability has been affected by the pandemic assuming the employee would not be engaged in their work; Where
  • Refusing to hire a candidate who has a family member with a disability that puts the family member at higher risk of COVID-19 due to potential increases in employer health insurance costs .

The guidance also clarifies how discrimination of carers can be based on race or ethnicity:

  • Denying an employee’s leave request to care for a cousin from another country who was recently diagnosed with COVID-19, as a variant of COVID-19 was first identified in the country origin of cousin; Where
  • Requiring Black or Asian employees to submit requests for leave, flextime or telecommuting in writing and waiting several days for a response, while allowing employees of other races or national origins in a similar situation to do so. such requests verbally and receive responses immediately.

What are the best practices to avoid discrimination of caregivers?

EEO Policies and Training

  • Make sure your employee handbook 1) describes the types of conduct prohibited against caregivers based on protected characteristics and stereotypes, 2) prohibits retaliation against those who report discrimination, and 3) identifies managers or other leaders to whom complaints of discrimination may be made.
  • Define “family” and “caregiver” broadly in EEO policies that go beyond definitions of immediate and traditional family.
  • Train managers and supervisors on federal and state employment laws and how the protections of those laws may cover caregivers.
  • Adopt work-life balance policies that support caregivers.

Hiring, recruitment and promotions

  • Disseminate job offers and promotion opportunities to all people, regardless of their caregiver status or perception of caregiver status.
  • Focus on applicants’ qualifications, not their care or family circumstances.
  • Ensure that employment decisions are based on legitimate and non-discriminatory grounds and not on stereotypes. Document these decisions.

Terms and conditions of employment

  • Consider offering flexible work arrangement options, if possible.
  • Monitor compensation practices and performance reviews for patterns of potential discrimination against members of a protected class.
  • Apply personal and sick leave policies consistently.
  • Do not limit employees’ ability to participate in large or complex assignments based on assumptions about caregiver responsibilities.
  • For shifts with changing work schedules, post schedules early to allow workers to arrange their care needs in advance.

What does this mean for employers?

Lawsuits based on caregiver bias are on the rise. As employers continue to fight the Great Shake-up and the Great Resignation, they must also remain focused on adopting and consistently enforcing workplace policies and practices that treat employees fairly and without unlawful consideration of their protected statuses and care responsibilities. This not only avoids the risk of discrimination claims, but also creates a positive work culture resulting in increased employee productivity and decreased turnover.

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