Hunton Employment & Labor Perspectives

On March 14, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued a technical assistance document providing guidance when it comes to claims of discrimination against employees and applicants with caregiving responsibilities in connection with the COVID-19 pandemic (“Guidelines”).  The Guidelines, entitled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws”, examine discrimination against employees and applicants based on pandemic caregiving responsibilities, noting that such discrimination may violate Title VII of the Civil Rights Act of 1964 (Title VII), Titles I and V of the Americans with Disabilities Act of 1990 (ADA) or Sections 501 and 505 of the Rehabilitation Act of 1973 (Rehabilitation Act), or other federal laws.

The Guidelines explicitly state that Federal employment discrimination laws do not prohibit employment discrimination based solely on caregiver status.  However, caregiver discrimination may violate federal law when it is based on an employee’s or applicant’s protected characteristics including, but not limited to, race or sex (including pregnancy, sexual orientation, or gender identity).  Caregiver discrimination also is unlawful if 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 Guidelines provide multiple instances of unlawful conduct by employers in connection with pandemic-related caregiving responsibilities.

Example 1: It would be unlawful if an employer refused to promote or hire a female employee or applicant based on the assumption 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.”

Example 2: It would be unlawful if an employer declined to assign a female caregiver “demanding or high-profile projects that increase [that employee’s] advancement potential but require overtime or travel,” based on the employer’s assumptions that these actions would enable the employee to better balance work and personal life (if a family member is infected with or exposed to COVID-19).

Example 3: It would be unlawful if an employer denied a male caregiver leave to care for a family member with COVID-19 or manage other pandemic-related caregiving duties “if the employer grants such requests when made by similarly situated women.”

Example 4: It would be unlawful for an employer to impose 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 such requirements are not imposed on other employees who make such requests.”

Example 5: It would be unlawful if an employer refused to promote or demoted pregnant employees, based on assumptions that such employees would be “primarily focused on ensuring safe and healthy pregnancies.”

There are many other examples of unlawful conduct identified in the Guidelines, which include other instances of discrimination, harassment, and/or retaliation.  Employers should consistently check the EEOC’s updates on pandemic-related guidance and determine how they could affect company practices.