EEOC Updates COVID Guidance to Address Caregiver, Family Responsibilities

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EEOC Points of Guidance

Sex discrimination considerations of telework or modified schedules

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.

How unlawful caregiver discrimination could arise

Caregiver discrimination 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.

Similar prohibitions exist under Title VII to prevent employers from discriminating against employees based on race or national origin.

Americans with Disabilities Act considerations

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.

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.

To whom civil rights laws apply

These protections are available to workers with any type of caregiving responsibilities, including care for children, spouses, partners, relatives, individuals with disabilities, or others.

Additionally, state or local laws might provide more protection that federal laws, and employees with caregiving rights may have rights under the Family and Medical Leave Act.