EEOC Provides New Guidance on COVID-19 Pandemic and Caregiver Discrimination

On March 14, 2022, the Equal Employment Alternative Fee (“EEOC”) issued a technical help doc offering steerage in terms of claims of discrimination in opposition to staff and candidates with caregiving duties in reference to the COVID-19 pandemic (“Guidelines”).  The Tips, entitled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws”, look at discrimination in opposition to staff and candidates based mostly on pandemic caregiving duties, noting that such discrimination could violate Title VII of the Civil Rights Act of 1964 (Title VII), Titles I and V of the Individuals with Disabilities Act of 1990 (ADA) or Sections 501 and 505 of the Rehabilitation Act of 1973 (Rehabilitation Act), or different federal legal guidelines.

The Tips explicitly state that Federal employment discrimination legal guidelines don’t prohibit employment discrimination based mostly solely on caregiver standing.  Nevertheless, caregiver discrimination could violate federal regulation when it’s based mostly on an worker’s or applicant’s protected traits together with, however not restricted to, race or intercourse (together with being pregnant, sexual orientation, or gender id).  Caregiver discrimination is also illegal whether it is “based on an applicant’s or employee’s association with an individual with a disability, within the meaning of the ADA, or on the race, ethnicity, or other protected characteristic of the individual for whom care is provided.”

The Tips present a number of cases of illegal conduct by employers in reference to pandemic-related caregiving duties.

Instance 1: It will be illegal if an employer refused to advertise or rent a feminine worker or applicant based mostly on the idea that she would “focus primarily on caring for her young children while they attend school remotely, or on caring for her parents or other adult relatives.”

Instance 2: It will be illegal if an employer declined to assign a feminine caregiver “demanding or high-profile projects that increase [that employee’s] advancement potential but require overtime or travel,” based mostly on the employer’s assumptions that these actions would allow the worker to raised stability work and private life (if a member of the family is contaminated with or uncovered to COVID-19).

Instance 3: It will be illegal if an employer denied a male caregiver go away to look after a member of the family with COVID-19 or handle different pandemic-related caregiving duties “if the employer grants such requests when made by similarly situated women.”

Instance 4: It will be illegal for an employer to impose extra burdensome procedures on LGBTQI+ staff who “make caregiver-related requests, such as requiring proof of a marital or other family relationship with the individual needing care, if such requirements are not imposed on other employees who make such requests.”

Instance 5: It will be illegal if an employer refused to advertise or demoted pregnant staff, based mostly on assumptions that such staff could be “primarily focused on ensuring safe and healthy pregnancies.”

There are various different examples of illegal conduct recognized within the Tips, which embody different cases of discrimination, harassment, and/or retaliation.  Employers ought to constantly examine the EEOC’s updates on pandemic-related steerage and decide how they may have an effect on firm practices.

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