EEOC Releases New Caregiver Guidance | Manatt, Phelps & Phillips, LLP

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The technical support document COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law explained that although “caregiver” is not a protected status, workers and applicants with caregiving responsibilities may have rights under other laws and in the post-COVID-19 workplace. , many employees are looking for more flexible arrangements for caregiving purposes.

Discrimination against applicants or employees with caregiving responsibilities may violate federal employment equality laws when based on a protected characteristic such as sex (including pregnancy, orientation or gender identity), race, color, religion, national origin, age (40 or older), disability or genetic information, the EEOC said.

The pandemic has heightened awareness of the issue of caregiving responsibilities, as many employees needed adjustments to work hours and location due to quarantine requirements or school and daycare closures.

“As the pandemic evolves and the country moves into a new normal, we cannot assume that obligations of care have ended,” EEOC President Charlotte A. Burrows said in a statement. “The work that carers do, whether as employees or as unpaid workers in the family, is in the interests of all of us. By ensuring that caregivers know their rights and that employers understand their responsibilities, the EEOC will help ensure that America’s recovery from the pandemic is equitable.

The technical assistance document includes examples of possible pandemic-related discrimination against caregivers to help guide employers.

It would be illegal if an employer refuses to hire an applicant who is the primary caregiver for a person with a disability who is at higher risk of complications from COVID-19 for fear that the employer’s healthcare costs will increase , the agency said. It would also be illegal for an employer to refuse to promote a woman on the assumption that, because she is a woman, she would primarily focus on caring for her children while they were in quarantine or attending school remotely.

The EEOC provided several examples of harassing conduct related to caregiving responsibilities that could contribute to an illegal and hostile work environment, ranging from bashing female employees to focus on their careers rather than their families during the pandemic to ridiculing employees. male employees for carrying out care duties for a child quarantine based on gender stereotypes that men are the breadwinners asking intrusive questions or making offensive comments about the sexual orientation of gay employees or lesbians after they requested leave to care for a spouse or same-sex partner.

Employers are not required to excuse poor performance if it results from care responsibilities during the pandemic, the guidelines say, but cannot apply performance standards inconsistently to employees based on gender, race, association with a disabled person or other protected characteristic.

“For example, employers cannot penalize Hispanic employees for missing meetings while supervising their children’s virtual school attendance or taking parents to medical appointments, while neglecting such conduct by employees of ‘other ethnicities,’ the EEOC said.

Different standards or processes for pandemic-related care claims based on the race or national origin of employees or care recipients are also prohibited, the agency noted. Employers would violate federal law by denying an employee’s leave request to care for a cousin from another country who was recently diagnosed with COVID-19 because a variant was first identified. once in the cousin’s home country, as directed.

Pregnancy-related discrimination can also occur in a variety of ways, the EEOC warned. It would be illegal for an employer to refuse to hire pregnant candidates on the assumption that the woman should focus on ensuring a safe or healthy pregnancy. It would also be illegal for an employer to allow employees to routinely harass pregnant co-workers for taking steps to avoid exposure to COVID-19, such as maintaining physical distance or telecommuting.

To read the new EEOC guidelines, click here.

Why is this important: Although federal law does not prohibit discrimination in employment based solely on caregiver status, employers must recognize the potential for discrimination against employees with caregiver responsibilities based on protected characteristics, as well than under broader national and local laws. California employers should also be aware of Assembly Bill 2182, which would add “family responsibilities” as a protected category under the state’s Fair Employment Housing Act. If passed, the measure would prohibit discrimination in employment based on family responsibilities and require employers to make reasonable accommodations for an applicant or employee’s known family responsibilities related to specified obligations.

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