two coworkers engaging

EEOC Updates Guidance on Caregiver Discrimination In Light of Covid-19 Pandemic

By Douglas Lipsky

In March, the Equal Employment Opportunity Commission (EEOC) updated its guidance on caregiver discrimination under federal employment discrimination laws as it relates to the Covid-19 pandemic. If you have questions about your status as a caregiver, talk to an experienced employment lawyer

The Backdrop

The Covid-19 pandemic has upended all our lives and forced many employees to juggle work and caregiver responsibilities, including navigating hybrid school schedules, school closures, unexpected exposures, infected family members, and quarantines. In light of these challenges, the EEOC issued guidance reminding employers that discriminating against an employee with caregiver responsibilities may be unlawful under federal equal employment opportunity laws, including:

  • Title VII of the  Civil Rights Act
  • Americans with Disabilities Act (ADA)
  • Pregnancy Discrimination Act
  • Family and Medical Leave Act
  • Equal Pay Act

Caregiving responsibilities involve the care of children, parents, older family members, and close relatives with disabilities. The guidance noted that employment discrimination based solely on caregiver status is not prohibited under federal law; however, the EEOC reiterated that such discrimination may be illegal when it is based on a protected characteristic (e.g. race, gender, religion, age, disability, sexual orientation).

What Is Caregiver Discrimination?

Caregiver discrimination is unlawful when it is based on a protected characteristic of an employee, applicant, or the individual for whom care is being provided. While caregiver discrimination can take many forms – some overt, others more subtle – examples include:

  • Refusing to hire a female applicant or promote a female employee based on the false assumption that a female will (or should) focus primarily on caring for young children attending school remotely, or caring for her parents or other adult relatives
  • Punishing female employees more harshly than similarly situated male employees for absences or missed deadlines due to pandemic-related caregiving responsibilities
  • Denying male employees leave or permission to work a flexible schedule to care for a family member with COVID-19 or to handle other pandemic-related caregiving responsibilities while granting such requests to similarly situated female workers
  • Imposing more burdensome procedures on LGBTQI+ employees who make caregiver-related requests, such as requiring proof of a marital or other family relationship with the individual needing care, if those requirements are not imposed on other employees who make such requests
  • Refusing an employee’s request for unpaid leave to care for a parent with long Covid that qualifies as a disability under the ADA, while approving other employees’ requests for unpaid leave to handle other personal responsibilities

Other Considerations

The guidance also reiterates that employees do not have a right to reasonable accommodations such as telework and flexible schedules merely because they are caregivers. However, employees who are unable to perform their job duties because of pregnancy, childbirth, or related medical conditions must be treated the same as other employees who are temporarily unable to perform job duties. 

Protection for Caregivers Under New York City Law

In 2016, the New York City Human Rights Law  (NYCHRL) was amended to include caregiver status as a protected characteristic. Under the law, a caregiver is defined as “a person who provides direct and ongoing care for a minor child or a care recipient.” A care recipient is a person with a disability who is the employee’s covered relative, including:

  • Child
  • Spouse
  • Parent
  • Domestic partner
  • Sibling
  • Grandchild
  • Grandparent

In short, the NYCHRL prohibits employers from discriminating against employees based on their caregiver status by giving poor performance reviews due to caregiver absences, denying promotions to workers with caregiving responsibilities, or refusing to offer reasonable accommodations for caregiving responsibilities. 

The Takeaway

While Covid-19 appears to be transitioning into an endemic virus, employees still need to balance work and caregiving responsibilities. If you suspect that you have been discriminated against because of your caregiver status, it takes an experienced employment discrimination attorney to protect your rights. Call us today.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.