On March 14, 2022, the Equal Employment Opportunity Commission (EEOC) issued new guidance warning employers that discrimination against an employee with caregiving responsibilities may be unlawful under federal employment discrimination laws. Although Congress has not carved out a new protected class for “caregiver,” according to the EEOC, caregiving discrimination violates federal laws when it is based on:

  1.  An applicant’s or employee’s sex, race, color, religion, national origin, age (>40), disability, or genetic information;
  2.  An applicant’s or employee’s association with an individual with a disability, or on the race, ethnicity, or other protected characteristic of the individual for whom care is provided; or
  3. Intersections among these characteristics (e.g., discrimination against Black female caregivers based on racial and gender stereotypes).

The technical assistance document issued by the EEOC includes helpful questions and answers, with various examples of how employers may, intentionally or unintentionally,
discriminate against employee caregivers. For example, it is illegal to refuse to hire a female applicant or promote a female employee based on an assumption that, because she is
female, her primary focus is (or should be) caring for young children who may attend school remotely due to Covid-19 closures or caring for her elderly, high-risk parents. It is also unlawful to deny men leave or permission to work a flexible schedule to care for a family member that contracted Covid19 if the employer grants such requests when made by similarly situated women.

LGBTQI+ applicants and employees are similarly protected. For example, employers cannot impose more burdensome procedures on LGBTQI+ employees who make caregiverrelated requests, such as requiring proof of a marital relationship with the individual needing care, if such a requirement is not imposed on other similarly situated employees. With respect to a caregiver’s rights to reasonable accommodations (e.g., telework, flexible schedules, or reduced travel), according to the EEOC, federal employment discrimination laws generally do not apply. However, there are caveats. For example, employees unable to perform their job duties due to pregnancy, childbirth, or related medical conditions must be treated the same as other employees who are temporarily unable to perform job duties. If employees who have severe fatigue, difficulty breathing, or headaches due to Covid19 are granted leave to recover and/or light duty when they return to work, employers must provide the same options to employees who are temporarily unable to work or perform job duties due to pregnancy. Additionally, employers should be careful to assess whether the Family and Medical Leave Act (FMLA) provides protection where federal employment discrimination laws do not.

Now is a good time of year to assess your EEO policies, train your managers on applicable employment laws and HR best practices, and ensure your company has a plan for addressing caregiver requests. The EEOC’s best practices document provides suggestions for incorporating caregiver issues into EEO policies, and there are several other helpful links throughout the body of the EEOC’s technical assistance document that are worth exploring. Likewise, Gardner Skelton attorneys are available to answer questions, revise policies, or assist with training. If we can help, please give us a call.