COVID-19 Response Resource Center: Timely Counsel for your Business

As many aspects of our lives return to “normal” after two years in the COVID-19 pandemic, individuals with caregiving responsibilities—for children, grandchildren, parents, partners or other family members—often remain in limbo. Ongoing school and daycare closures, as well as health risks and concerns for those not yet eligible for the COVID-19 vaccine, will likely create ongoing disruption for employees with caregiver responsibilities.

The Equal Employment Opportunity Commission (EEOC) recently released COVID-19-specific guidance on the ways that caregivers may be entitled to protections under federal anti-discrimination laws. The EEOC does not state that caregivers are protected solely on the basis of their status as a caregiver. Rather, in this technical assistance document, the EEOC explains that caregiver discrimination violates employment discrimination laws when it is based on a protected characteristic such as sex, pregnancy, sexual orientation, gender identity, race, color, religion, national origin, age, disability, genetic information, association with an individual with a disability, or the race, ethnicity, or other protected characteristic of the individual receiving care.

The EEOC goes on to provide examples of how such unlawful discrimination can manifest, including where an employer:

• makes it more challenging for a female candidate with caregiving responsibilities to demonstrate that she will be able to fulfill essential job responsibilities;
• subjects an Asian employee’s caregiver obligations to greater scrutiny because COVID-19 was first identified in an Asian country; or
• asks intrusive questions about an employee’s sexual orientation after a leave request to care for a same-sex partner.

The EEOC cautions that even well-intentioned decisions may be discriminatory if based on the individual’s protected class. For example, an employer may not unilaterally decide against assigning a mother with young children to high-profile projects on the basis that the projects may require time away from children, or decide without input from a pregnant employee that the employee should work exclusively remote. Workplaces also may not question the legitimacy of caregiver obligations raised by an employee who identifies as male, or by an LGBTQI+ employee, if such scrutiny would not be applied to a female caregiver with a similar request.

At bottom, this guidance is a reminder that while identifying as a caregiver does not place the employee in a protected class, employers should assess the impact of caregiving responsibilities similarly to other out-of-work obligations when it comes to evaluating performance, enforcing policies or integrating the employee into the workplace. Caregiver responsibilities should be vetted according to similar standards regardless of the gender, race, national origin or other personal characteristic of the particular employee.

While the anti-discrimination principles outlined in the guidance may seem intuitive, the devil is in the details. Employers may inadvertently engage in discriminatory practices if not diligently comparing their treatment of employees, and employees’ situations need not be identical for them to meet the “similarly situated” requirement under the law. Employers should proceed with caution and consult with legal counsel to best insulate themselves against allegations of discrimination.