Monday, March 14, 2022: Manager Alert: EEOC Slips in an Unsanctioned New “Law” on So-Called “Intersectional Discrimination” Under Guise of New Caretaker Discrimination Guidance
The Equal Employment Opportunity Commission (EEOC) released new “technical assistance guidance” titled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws.” While the guidance purportedly merely relays and reports “established” policy positions to discuss (via 18 Q&As) when discrimination against applicants and employees related to COVID-19 pandemic caregiving responsibilities may violate the below listed federal statutes, we can find no record of the 5-Member Commission have voted on this policy position:
- Title VII of the Civil Rights Act of 1964 (Title VII),
- Titles I and V of the Americans with Disabilities Act of 1990 (ADA),
- Sections 501 and 505 of the Rehabilitation Act of 1973 (Rehabilitation Act), or
- other EEOC-enforced laws.
Regardless of whether this is properly approved Commission policy, there is nothing new here, other than a side-adventure (discussed below) implicitly recognizing, without comment, so-called “inter-sectional” discrimination (in which two protected statuses are said to be necessary to combine together to create the protected class: i.e., “African-American Women,” even though there is no discrimination either against “African-Americans” or “Women.” The Commission could have issued this same guidance as to carpenters, or airplane mechanics or secretaries and it would equally be true and applicable. Said another way, there is nothing here which is unique to the classification of the employee as a “caregiver,” although it is a good punch list of intentionally discriminatory actions not to undertake at point of hire (other than the off-topic discussion of “intersectional discrimination.”
It is important to note that a “caregiver” is not a protected class. However, a caregiver may be a member of a protected class (because pregnant, or a man, etc.), and discrimination based on a protected class can be unlawful. It is also important to understand that few courts have found “inter-sectional” discrimination claims to be justiciable under Title VII which makes unlawful only those actions “based on” “race,” “sex,” “gender,” etc.….and not based on “race and sex.”
It is also important to understand that this “caregiver” guidance does not apply to the vast majority of caregivers in the United States. Title VII does not extend to companies with fewer than fifteen employees and only in those companies which in addition affect “inter-state commerce.” (Most caretakers in the U.S. still work independently or through small “Mom and Pop” companies of 3 or 4 employees and not through corporate agencies. However, that work architecture is changing throughout the U.S. as home care for wealthy and aging “Baby Boomers” is booming). Likewise, ADA jurisdiction starts with the 15th employee (and the company must affect inter-state commerce). Age act (Age Discrimination in Employment Act) extends to companies with twenty employees or more and must affect inter-state commerce. (But see state law discussion, below.)
The EEOC’s guidance starts with this explanation:
Q #1. When does discrimination against applicants or employees with caregiving responsibilities violate federal employment discrimination laws?
- Caregiver discrimination violates federal employment discrimination laws when it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability, or genetic information (such as family medical history).
- 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.
- Finally, caregiver discrimination violates these laws if it is based on intersections among these characteristics (for example, discrimination against Black female caregivers based on racial and gender stereotypes, or discrimination against Christian female caregivers based on religious and gender stereotypes).
The additional Q&As cover examples of unlawful discrimination of caregivers based on gender, LGBTQI+, pregnancy, disability, national origin, and an intersection of protected classes. Other items addressed include harassment, retaliation, accommodations, and job performance.
What About State or Local Laws?
This is a crucial factor that employers should investigate. For example:
Q #5. Do employees have a right under federal employment discrimination laws to reasonable accommodations such as telework, flexible schedules, or reduced travel or overtime because they are caregivers?
- In general, no. The laws enforced by the EEOC do not provide employees with a right to accommodations to handle caregiving duties. However, employees who are unable to perform their job duties because of pregnancy, childbirth, or related medical conditions must be treated the same as other employees who are temporarily unable to perform job duties.
- In addition, employees with caregiving responsibilities may have rights under other laws, such as the right to leave for covered caregiving purposes under the [federal] Family and Medical Leave Act [“FMLA”] which the U.S. Department of Labor enforces, or under similar state or local laws. Employers also may choose to provide such accommodations to employees at their discretion, as long as they do so in a nondiscriminatory manner.
Note: The federal FMLA applies only to employers with fifty or more employees within seventy-five miles and to employees who have worked at least 1250 hours in the prior 12 months.
Note: In some states, like California, you could become an “employer” covered by the state’s anti-discrimination statutes when hiring a single caretaker (not employed at a company with 15 or more employees) to take care of one of your parents in their home since California law asserts jurisdiction over persons or companies which hire only one “employee” (which often leads into the Independent Contractor discussion in California).
Related Resources From EEOC