Many employees take on caregiving responsibilities not
only for their children, but also spouses, partners, older relatives, individuals with disabilities, or others. As the COVID-19 pandemic continues on, so do the struggles these employees face trying to juggle caring for their loved ones and performing their jobs.
The Equal Employment Opportunity Commission (“EEOC”) recently issued guidance on “caregiver” discrimination and the pandemic, reminding employers that discriminating against employees because of caregiving responsibilities may violate the law. Read it here.
What is Caregiver Discrimination?
Being a “caregiver” is not a protected class (like race or sex), and being a “caregiver” does not automatically give an employee rights to workplace accommodations to which a disabled employee would be entitled to. Caregiver mistreatment is employment discrimination when it is unevenly applied or unfairly targets protected classes such as sex, race, color, religion, national origin, age or disability. Under federal law, caregiver discrimination also applies to an employee’s association with an individual with a disability, which can include Long COVID.
In its guidance, the EEOC gave many examples of unlawful caregiver discrimination such as:
- Choosing a man instead of a woman for promotion because the woman cares for children or aging parents.
- Refusing to give a man leave or a flexible schedule to care for a family member, when a woman was given leave.
- Denying caregiving leave to an employee based on the sexual orientation or gender identity of the employee or the employee’s partner.
Anti-discrimination laws prohibit harassment related to caregiving duties, such as ridiculing male employees for caregiving responsibilities, or disparaging female employees for seeking advancement opportunities. Harassment violates the law when it creates a hostile working environment because of a protected characteristic.
Anti-discrimination laws also prohibit employers from retaliating against employees for reporting employment discrimination, participating in employment discrimination proceedings or opposing discrimination, including unlawful caregiver discrimination.
While discrimination laws do not require employers to accommodate employees with caregiving responsibilities, employers must treat employees with caregiving responsibilities the same as it treats employees who need flexibility for other reasons. And, while employers are not required to excuse poor performance resulting from an employee’s caregiving duties, employers must enforce standards consistently.
Caregivers may be entitled to rights under other laws as well, such as the Family and Medical Leave Act. If you think you are being treated unfairly because you are a caregiver, contact an experienced employment attorney to discuss your rights.