On Pi day (i.e., March 14 or 3.14), the EEOC released a new
publication, The
COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment
Discrimination Laws, and updated its Technical
Assistance Guidance for COVID issues which impact federal equal opportunity
laws. In particular, this EEOC update
focuses on sexual stereotypes associated with caregiving responsibilities. This update
to the COVID Guidance is as follows:
I. Caregivers/Family Responsibilities
For additional information about pandemic-related caregiver discrimination under the laws enforced by the EEOC, see the EEOC’s technical assistance document, The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws.
I.1. If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations? (3/14/22)
Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caregiving responsibilities for children.
I.2. How might unlawful caregiver discrimination related to the COVID-19 pandemic arise under the laws enforced by the EEOC? (3/14/22)
Caregiver discrimination violates the laws enforced by the EEOC if it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, national origin, disability, age (40 or older), or another characteristic covered by federal employment discrimination laws. Caregiver discrimination also is unlawful if it is based on the caregiver’s association with an individual with a disability, or on the race, ethnicity, or other protected characteristic of the individual receiving care.
Caregiver discrimination related to the pandemic may arise in a variety of ways. For instance, under Title VII, employers may not discriminate against employees with pandemic-related caregiving responsibilities based on their sex, including gender stereotypes associated with caregiving responsibilities or roles. For example, employers may not decline to assign female employees with caregiving responsibilities demanding or high-profile projects that increase employees’ advancement potential but require significant overtime or travel. Likewise, employers may not reassign such projects to other employees based on assumptions that female caregivers cannot, should not, or would not want to work extra hours or be away from their families if a family member is infected with or exposed to COVID-19. Employers also may not deny male employees permission to telework or to adjust their schedules to enable them to perform pandemic-related caregiving obligations, such as caring for young children or parents, while granting such requests when made by similarly situated female employees.
Title VII also prohibits employers from discriminating against employees with pandemic-related caregiving duties based on their race or national origin. For example, employers may not require more burdensome processes for employees of a certain race or national origin who are requesting schedule changes or leave related to COVID-19 caregiving. Employers also may not deny such requests more frequently, or penalize employees for requesting or receiving schedule changes or leave for caregiving purposes, based on employees’ race or national origin. Discrimination based on citizenship or immigration status against workers with caregiving responsibilities also can be unlawful under a law enforced by the Department of Justice.
Under the ADA, employers may not discriminate against workers based on stereotypes or assumptions about workers’ caregiving responsibilities for an individual with a disability, such as a child, spouse, or parent with a disability. For example, if an applicant is the primary caregiver of an individual with a disability who is at higher risk of complications from COVID-19, an employer may not refuse to hire the applicant out of fear that the care recipient will increase the employer’s healthcare costs. If the applicant is hired, the employer may not refuse to allow the care recipient to be added as a dependent on the employer’s health insurance because of that individual’s disability. An employer also may not refuse to promote employees with caregiving responsibilities for an individual with a disability based on the assumption that they will take a significant amount of leave for caregiving purposes.
I.3. Are these legal protections available only to workers caring for children, or are they also available to workers with other caregiving obligations? (3/14/22)
This response includes hyperlinks to non-governmental sources. The EEOC includes these resources solely for informational purposes. The EEOC does not endorse these resources or the entities responsible for them, and it does not vouch for the accuracy of the information provided by referencing the non-governmental sources in this response.
Employers may not discriminate against applicants or employees with caregiving responsibilities based on characteristics protected by the laws enforced by the EEOC, including caregivers’ sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability, association with an individual with a disability, or genetic information (including family medical history). These protections are available to workers with any type of caregiving responsibilities, including care for children, spouses, partners, relatives, individuals with disabilities, or others.
State or local laws may provide additional protections for workers with caregiving responsibilities. Employees with caregiving responsibilities also may have rights under other laws, including the Family and Medical Leave Act or similar state or local laws.
I.4. Should employers and employees be aware of any other pandemic-related caregiver discrimination issues? (3/14/22)
Yes. In this What You Should Know document, the EEOC addresses several different types of potential pandemic-related caregiver discrimination. For example:
A.10 addresses employer inquiries about family members with COVID-19 or related symptoms.
C.5 addresses employer-imposed start date postponements or offer withdrawals for pregnant applicants.
D.13 addresses whether employees are entitled to accommodations to avoid exposing family members at high risk of complications from COVID-19.
J.1 and J.2 address excluding employees from the workplace based on pregnancy and accommodating pregnancy.
K.2 addresses pregnancy accommodation requests related to vaccination.
K.3 addresses employer encouragement of vaccination of family members.
K.13 addresses decisions not to be vaccinated due to pregnancy.
K.18 addresses GINA and incentives for non-employer-provided family member vaccinations or employer requests for documentation of family member vaccinations.
K.20 addresses GINA and incentives for employer-provided family member vaccinations.
K.21 addresses GINA and family member vaccinations without incentives.
For general information about caregiver discrimination and federal employment discrimination laws, see the EEOC’s policy guidance, associated fact sheet, and best practices
