EEOC Issues Guidance on Caregiver Discrimination

KEY TAKEAWAYS:

  • Caregiver discrimination is just not by itself illegal below federal or Michigan regulation, however it may be when it’s based mostly on protected traits.

  • Employment selections based mostly on gender stereotypes are unlawful even when they search to learn the worker or are well-intentioned.

  • Caregiver discrimination also can take the type of illegal differential remedy when it impacts people related to an individual who has a incapacity.

On March 14, 2021, the U.S. Equal Employment Alternative Fee (EEOC) up to date its technical help information, What You Should Know About COVID-19, and the ADA, the Rehabilitation Act, and Other EEO Laws and issued a technical help doc, entitled The COVID-19 Pandemic and Caregiver Discrimination under Federal Employment Discrimination Law. This technical help doc particulars advisable finest practices for employers managing staff with household caregiver obligations. In accordance with the EEOC:

  • Caregiver standing is just not a protected attribute below federal regulation. Nevertheless, caregiver discrimination violates federal regulation when it’s based mostly on a protected attribute like intercourse or incapacity.

  • A caregiver is just not solely restricted to people who care for kids but in addition consists of staff with any sort of caregiving obligations, together with caring for spouses, companions, relations, people with disabilities and others.

  • Employers should not required to excuse poor efficiency that will end result from an worker’s caregiving duties, so long as similarly-situated staff are handled persistently. As at all times, it’s a finest observe to doc any efficiency or disciplinary warnings issued to staff.

  • Employers have to be conscious of conditions when caregiver discrimination could be illegal intercourse discrimination:

    • Employers should not base employment selections on gender stereotypes. An employer can’t refuse to rent or promote a feminine worker based mostly on the hypothesis {that a} girl might be extra targeted on her kids or caring for members of the family than her work. An employer likewise can’t deny male staff depart or versatile schedules based mostly on the idea that they’re the breadwinner of their household, relatively than one who performs the caregiving duties.

    • Intercourse discrimination consists of discrimination based mostly on sexual orientation. Employers can’t make use of extra burdensome procedures in the case of their LGTBQ staff, comparable to requiring proof of a marital or household relationship to the person requiring care if such info is just not requested from different staff with comparable wants.

    • Intercourse-motivated selections are illegal, even when they goal to learn an worker. An employer can’t decline to provide feminine staff work assignments that require extra time or journey on the idea that feminine caregivers favor to not work further hours or be away from their households. Nor can an employer deal with a feminine worker extra favorably due to caregiving obligations, like being extra lenient with its attendance coverage, in comparison with male staff.

  • Employers should not discriminate in opposition to a caregiver who’s related to a person with a incapacity. For instance:

    • Employers can’t deny an worker’s request for unpaid depart to take care of a disabled member of the family whereas permitting different staff to go on unpaid depart for different private obligations except there are different reputable enterprise causes to disclaim the depart which might be unrelated to the worker’s affiliation with a person with a incapacity.

    • Denial or exclusion of advantages may additionally be analyzed as an illegal discrimination declare. As an illustration, an employer can’t refuse to rent an applicant as a result of their member of the family is disabled or add the applicant’s member of the family to the corporate well being care plan based mostly on the concern that its medical health insurance prices will rise.

  • Whereas federal regulation doesn’t require employers to accommodate staff with caregiving obligations, employers should deal with staff who’re unable to carry out their job duties due to being pregnant, childbirth, or associated medical circumstances the identical as different staff who could also be briefly unable to carry out their duties for different causes.

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