New Guidance from EEOC about Caregiver Discrimination
By Paul H. Derrick
“Caregiver discrimination? Is that really a thing?” Yep, and the government takes a pretty dim view of it, too. The U.S. Equal Employment Opportunity Commission (EEOC) just released a technical assistance document, “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law,” and an update to its COVID-19 “What You Should Know” guidance explaining discrimination against employees and job seekers with family caregiving responsibilities.
Based on existing EEOC policy guidance, these documents outline how discrimination against applicants or employees with caregiving responsibilities can violate federal equal employment laws when based on a protected characteristic such as sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability or genetic information. For example, an employer’s assumptions or stereotypes about caregivers may result in illegal discrimination when they lead the employer to make employment decisions based on a protected characteristic.
The technical assistance provides pandemic-related examples of discrimination against caregivers. It would be unlawful, for instance, if an employer refused to hire an applicant who is the primary caregiver of an individual with a disability at higher risk of complications from COVID-19 out of fear that the employer’s healthcare costs would increase. It also would be unlawful for an employer to refuse to promote a woman based on the assumption she would focus primarily on caring for her children while they quarantined or attended school remotely.
This new technical assistance document also addresses situations in which caregivers may encounter unlawful harassment, retaliation, or discrimination based on pregnancy, gender, association with someone who has a disability, or other bases protected by EEOC-enforced laws. In short, there is something for everyone.
There are many best practices employers can implement that go beyond federal nondiscrimination requirements and can help minimize the chance of an applicant or employee succeeding on a claim of caregiver discrimination. A few of these are:
- Be aware of and train managers about the legal obligations that may impact decisions about treatment of applicants and workers with caregiving responsibilities;
- Develop, disseminate, and enforce a strong EEO policy that clearly addresses types of conduct that might constitute unlawful discrimination against caregivers based on characteristics protected by federal anti-discrimination laws;
- Ensure that supervisors and managers at all levels are aware of, and comply with, the organization’s work-life policies. (Of course, you should develop meaningful work-life policies if your organization does not already have them.);
- Focus on the individual’s qualifications for the job in question. Do not ask questions about the applicant’s or employee’s children, plans to start a family, pregnancy, or other caregiving-related issues during interviews or performance reviews;
- Implement recruitment practices that target individuals with caregiving responsibilities who are looking to enter or return to the workplace;
- Monitor compensation practices and performance appraisal systems for patterns of potential discrimination against caregivers. Ensure that performance appraisals are based on employees’ actual job performance and not on stereotypes about caregivers; and
- Provide reasonable personal or sick leave to allow employees to engage in caregiving even if not required by the Family and Medical Leave Act.
These are just a few best practices that employers should seriously consider. Thoughtful and flexible work policies positively impact employee engagement, which typically results in increased productivity and profitability. These and other best practices can benefit all workers, regardless of caregiver status. They enable employers to recruit and retain talented, productive, committed employees. It may sound trite, but it really can be a win-win for everyone involved.
If you have questions about caregiver discrimination, management training, or any aspect of workplace law, please contact one of the labor and employment attorneys at Barnwell Whaley.