As the second year of the COVID-19 pandemic ends, employers and employees alike continue to juggle a variety of demands.  Finding a balance for these obligations can often result in both practical and legal considerations.  This is especially true for employees with caregiving responsibilities for children, spouses, partners, older relatives, individuals with disabilities, and others.  As a result, on March 14, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”) published new guidance for employers regarding the application of existing federal employment discrimination legal principles involving caregivers to situations related to the COVID-19 pandemic (the “Guidance”).

As the Guidance makes clear, discrimination on the basis of caregiving responsibilities alone is not prohibited under federal employment laws enforced by the EEOC, including but not limited to, Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”) (“collectively, the “EEOC Employment Laws”).  However, if the discrimination is tied to or intertwined with another recognized protected status (such as sex, race, age, or disability), then the EEOC Employment Laws may nonetheless be triggered. 

The Guidance includes a number of examples of this type of unlawful discrimination, including, but not limited to:

1. If an employer refused to hire a female applicant or refused to promote a female employee based on assumptions that, because she was female, the applicant/employee would (or should) focus primarily on caring for her children while they attend school remotely, then such action would violate Title VII.
2. If an employer refused to hire a pregnant applicant or refused to promote a pregnant employee based on assumptions that the applicant/employee will or should be primarily focused on ensuring a safe and healthy pregnancy, then such action would violate Title VII.
3. If, based on gender stereotypes, an employer denied a male employee’s request to work a flexible schedule to care for a family member with COVID-19, but grants such requests when made by similarly-situated female employees, then such action would violate Title VII.
4. If an employer required LGBTQI+ employees to provide proof of a marital relationship in order to take time off to care for the employee’s partner who has COVID-19, but did not require such proof from other employees, then such action would violate Title VII.
5. If an employer refused an employee’s request for unpaid leave to care for a parent with long COVID-19 (provided the parent’s symptoms qualified as a disability), but granted other employees’ requests for unpaid leave to handle other personal responsibilities, then such action would violate the ADA, because the law also makes it unlawful for an employer to discriminate against an employee because of a person’s association with an individual with a disability.

In addition to highlighting examples of discrimination, the Guidance also offers advice on caregiving-related scenarios that may trigger accommodation obligations and/or may qualify as unlawful harassment and/or retaliation under the EEOC Employment Laws.

It is important to remember that the EEOC Employment Laws are not the only laws that may apply to an employee with caregiving responsibilities.  Federal employment laws enforced by agencies other than the EEOC, such as the Family and Medical Leave Act (which is enforced by the Department of Labor), as well as state and/or local laws may provide employees with further protections.  As such, while the Guidance offers employers much helpful information, it should not be the only guidance or consideration consulted by an employer before taking adverse employment action against an employee with caregiving responsibilities during the COVID-19 pandemic.

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