New England Biz Law Update
As every employer has seen, the COVID-19 pandemic has caused changes to employees’ work locations, schedules and job status, affecting their work and personal obligations.
This has resulted in competing job and caregiving demands for millions of Americans who must care for children, spouses, parents and other loved ones.
The U.S. Equal Employment Opportunity Commission, the federal agency that investigates and addresses job discrimination in all its forms, is well aware of the temptation of employers to take negative employment actions against those workers whose caregiving responsibilities potentially create inconveniences for them.
That’s why the EEOC has issued updated guidance for employers about the different contexts in which caregiver discrimination can arise. It’s also why it’s critical that every employer be aware of these various contexts.
Here’s a helpful summary of some of the guidance the EEOC has provided.
First, it’s important to note that being a caregiver does not automatically bar an employer from taking adverse action. But employers may not discriminate based on a worker’s membership in a “protected class” like race, religion, sex, disability, age or pregnancy. Usually a caregiver discrimination case falls into one of these areas.
For example, it’s prohibited under federal law to discriminate in the workplace based on sex. Still, some employers engage in stereotyped thinking and pass over female job applicants or overlook female employees for promotion because they assume they’re more likely to need to stay home if their kids get sick or have to attend school remotely. Similarly, an employer may deny caregiving leave to a male employee based the stereotyped assumption that his spouse can handle the situation, while granting leave to female workers under the same scenario. These would both be actionable discrimination cases.
Meanwhile, an employer could face claims of disability discrimination under a variety of scenarios. For example, denying unpaid leave to care for a relative with “long COVID” symptoms while approving unpaid leave for other conditions could qualify as disability discrimination. So could denying a promotion to a worker with a family member whose condition worsened during the pandemic if this was done under the assumption that the employee won’t have as much time to devote to the job.
Meanwhile, employers who engage in certain behaviors could potentially face consequences under federal law. For instance, an employer who criticizes a male employee for leaving to care for a child or asks intrusive questions of an LGBTQ+ worker who requests leave to care for a same-sex spouse or partner could face claims of gender-based harassment.
There are many other situations where negative treatment of a caregiver could result in liability under discrimination law. That means it’s critical for every employer to have up-to-date discrimination and harassment policies regarding caregiver issues and to make sure all managers are properly trained. Consulting with a local employment attorney to review your policies and practices would be very helpful in this regard.
