United States: EEOC releases new guidance on caregiver discrimination and COVID-19
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On March 14, 2022, the EEOC released new guidance regarding caregiver discrimination and the COVID-19 pandemic. The guidelines explain that while federal employment discrimination laws do not prohibit employment discrimination based solely on caregiver status, employers cannot discriminate against an applicant or employee who is a caregiver on the basis of a protected characteristic (race, color, religion, age, disability, national origin, or genetic information). The guidelines also explain that carer discrimination is illegal if it is based on an applicant’s or employee’s association with a person with a disability or another protected characteristic of the person receiving care.
The guidelines provide examples of unlawful discrimination and harassment based on an applicant’s or employee’s pandemic-related care responsibilities, including:
- Deny an employee’s unpaid leave request to care for a relative with long-term COVID who is a disability, while approving other employees’ unpaid leave requests to fulfill other personal responsibilities;
- Refusing to promote an employee who is the primary caregiver for a child with a mental health condition that has worsened during the pandemic, based on the employer’s assumption that the employee would not be fully available to co-workers and customers, or engaged in work, due to the employee’s care obligations;
- Refuse to hire a candidate because the candidate’s spouse has a disability that puts her at higher risk of serious illness from COVID-19, and the employer is concerned that her health insurance costs will increase if the candidate’s wife is added to his health care plan;
- Criticizing or ridiculing male employees for seeking to perform or perform caregiving duties, such as taking time off to care for a child who is in quarantine after potential exposure to COVID-19, or limiting overnight travel, based on gender stereotypes of men as breadwinners and women as caretakers; and
- Questioning, without merit, the professional dedication of employees caring for people with disabilities who are at higher risk of serious illness from COVID-19, or mocking such employees on this basis for taking protective measures pandemic precaution to avoid infection.
In addition, the guidelines make it clear that federal employment discrimination laws do not entitle employees to accommodations in the performance of their caregiving duties. However, employees with caring responsibilities may have rights under other laws, such as the right to leave for care purposes covered under the Family and Medical Leave Act. Further, employers are not required to excuse poor performance resulting from employees’ caregiving duties, but they may not inconsistently apply workplace discipline policies based on the protected characteristic of an employee.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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