As the world enters year three of the COVID-19 pandemic, the Equal Employment Opportunity Commission (“EEOC”) has issued a warning to employers of yet another risk to their businesses: caregiver discrimination claims.

It is no surprise that the pandemic has significantly disrupted (and continues to disrupt) employee work and personal obligations. School and childcare closures, as well as quarantine requirements, have put many workers in a bind, forcing some to choose between the competing demands of work and caregiving for their loved ones.

Large numbers of women, in particular, have left the workforce due to caregiving responsibilities, and now the “Great Resignation,” coupled with increased pressure for flexible work arrangements, has opened the door to a new form of employment liability for businesses.

The EEOC recently issued new guidance for employers to navigate the “new normal” and to address how an employer’s decisions and actions involving workers with caregiving responsibilities may violate laws protecting workers from discrimination. This new guidance supplements the EEOC’s previously issued “best practices” for employers on how to recognize and prevent caregiver discrimination. Employers should be aware of the heightened risk of caregiver discrimination claims following the EEOC’s guidance, and of the changing employee expectations that may make these claims more likely.

An employee generally cannot bring a discrimination claim against an employer under federal law based solely on his or her status as a caregiver. In other words, a female traveling salesperson could not claim discrimination where her employer refuses to eliminate work-related travel to accommodate her caregiving responsibilities for her children.

The EEOC’s guidance reminds employers, however, that caregiver discrimination may be unlawful if it is based on: (1) an employee’s status that is protected under federal law (such as an employee or applicant’s sex or gender identity, pregnancy, race/color, or national origin), (2) an employer’s assumptions about such protected categories, or (3) the caregiver’s association with an individual with any of these protected categories.

Using the same example of the female traveling salesperson, it would be unlawful for the same employer to decline to assign the employee to additional sales territories based on the employer’s assumptions that she, as a female caregiver for children at home, would prefer not to work extra hours or would not want to be away from her family if her children were, for example, infected with COVID-19. The legal protections apply to all employees caring for children, spouses, partners, relatives, individuals with disabilities, or others, regardless of their protected status.

The guidance also makes clear that employers may violate federal law when making employment decisions based on assumptions about the identity of the employee-caregiver. Just as it would be unlawful for the employer to refuse to assign additional sales territories to the female salesperson based on the assumptions noted above, the guidance provides that it is equally unlawful for employers to take adverse actions against male and LGBTQI+ applicants and employees with caregiving responsibilities based on their gender, sex stereotypes, sexual orientation, and/or gender identity.

The guidance makes clear that failing to treat employees who have caregiving responsibilities the same as other employees in similar circumstances may result in a claim of discrimination. Take, for example, a scenario where an employer with a remote workforce issues a return-to-work policy. It would be unlawful for the employer to deny a male office administrator’s request for an exception from the return-to-work policy due to caregiving responsibilities if the employer routinely grants such requests made by female office administrators. It also would be unlawful for an employer to refuse a female manager’s request for unpaid leave to care for a parent with “long COVID” (a “disability” under the Americans with Disabilities Act) if the employer grants a male manager’s request for unpaid leave to attend his children’s travel soccer games.

Accommodations for caregivers

Under federal and state employment discrimination laws, employees generally do not have a right to reasonable accommodations — such as telework, flexible schedules, or reduced travel or overtime — based on their caregiver status. Employers should remain mindful, however, that caregivers may have rights to some of these accommodations under the Family and Medical Leave Act or other similar state or local laws.

Employers are free to provide these types of accommodations to employees, but the EEOC emphasizes that employers must do so in a non-discriminatory manner. Even employment decisions made for “benevolent” reasons may be unlawful. For example, a family-owned business may want to keep its pregnant employees safe, and therefore decides that all pregnant employees must work remotely to limit their exposure to COVID-19. Even though the employer was well-intentioned, this employer may have violated the law by treating pregnant employees differently from other employees.

Notably, employees with caregiving responsibilities still must meet the performance requirements of the job. Employers are not required to excuse poor performance because of caregiving responsibilities. However, employers must apply performance standards consistently to all employees, and in doing so, should be aware of any unconscious biases that may affect their decision-making.

For example, an employer may have an unconscious bias about a certain ethnic group, believing the group’s members to have fewer caretaking responsibilities for their family members than other ethnic groups. Employers should take caution and avoid penalizing employees of this ethnic group for taking relatives to medical appointments while overlooking the same conduct by employees of other ethnicities.

Beware of retaliation and harassment

Caregiver discrimination also can open the door for claims of unlawful retaliation and harassment. For example, consider the employer who decides not to call an employee back from a pandemic-related furlough. Recall decisions are within the realm of employer discretion — unless the employer refuses to recall the employee based on an unlawful reason.

Consider an employer who does not recall an employee because she filed a pregnancy discrimination complaint, or a manager who deliberately changes the schedule of an employee with young children to conflict with school drop-off times because the employee supported a co-worker’s claim of discrimination. Both of these examples would be unlawful retaliation related to caregiver status.

An employer’s obligation to prevent unlawful harassment extends to co-worker harassment, and harassment by supervisors, related to an employee’s caregiver status. For example, employees who insult, criticize, or ridicule their colleagues of a certain gender for caring for family members with COVID-19 may be engaging in harassment based on gender stereotypes of men as “breadwinners” and women as caretakers. Additionally, a manager who assigns unreasonable amounts of work to employees of color because they request leave to care for relatives with “long COVID,” while not assigning similar amounts of work to other employees, may be engaged in harassment based on caregiving responsibilities.

Employer best practices for workers with caregiving responsibilities

So, what does this all mean for employers? In order to avoid potential liability as the pandemic continues to evolve, the EEOC highlights several best practices for employers to effectively recognize and prevent claims of discrimination, retaliation, and/or harassment based on caregiver status:

Develop and enforce a strong equal employment opportunity policy that clearly includes the types of conduct that might be considered unlawful discrimination against caregivers.
Train managers on their legal obligations under federal and state law to avoid employment decisions that adversely affect employees with caregiving responsibilities.
Ensure that management employees at all levels of the organization are aware of, and comply with, the employer’s remote work policies and other work-life policies.
Ensure that employees are aware of the ways to raise an internal complaint of discrimination, retaliation, or harassment based on caregiver status, and respond to any complaints swiftly and effectively.
Provide clear and credible assurances that employees who make complaints of discrimination based on caregiver status will not be retaliated against by anyone in the organization.

Efforts to avoid claims of caregiver discrimination can start as early as the recruitment phase. For example, employers should focus on the applicant’s qualifications and ability to do the job and should avoid asking questions related to the applicant’s children or plans to start a family. Developing specific, job-related qualification standards for each position, and taking care to apply those same standards to all applicants, will not only help avoid discrimination claims, but also will result in a better hiring process.

Employers also should review their workplace policies and practices to determine whether their policies properly address current workforce needs and whether there are patterns or risks of potential discrimination against workers with caregiving responsibilities. For example, employers should review workplace policies that limit flexibility, such as mandatory overtime or blanket prohibitions against remote work arrangements, to ensure that they are necessary to business operations and are applied consistently.

Another best practice is to reassign job duties that employees are unable to perform due to caregiving responsibilities, to the extent these are not “essential functions” of the job and as long as doing so would not impose significant costs or burdens on the employer. For example, the EEOC suggests that if Jack and Lily work on the same team, and Jack requests an early departure to pick up his daughter from pre-school, and Lily requests a delayed arrival to take her mother to weekly physical therapy sessions, the supervisor should grant both requests on the basis that Jack can support the team in Lily’s absence, and vice-versa. Although these best practices go beyond what is required under federal employment discrimination laws, they reduce the risk of caregiver discrimination claims and remove barriers to equal employment opportunity.

Looking ahead

The EEOC guidance provides helpful instruction and examples for employers on how to make employment decisions involving workers with caregiving responsibilities. The guidance also signals the EEOC’s renewed interest in caregiver discrimination. As the pandemic continues to evolve and affect caregiving workers, employers should be prepared to assess the risk of caregiver discrimination and consult with counsel to ensure that their employment decisions are not discriminatory.

Stephanie Caffera is a partner in Nixon Peabody’s Labor & Employment practice group. She developed this article with Nixon Peabody Labor & Employment associates Conor Tallet and Jeniffer Taylor.