The Equal Employment Opportunity Commission (EEOC) recently updated its policy guidance on caregiver discrimination, prompted by the novel challenges COVID-19 placed on workers and employers alike. Caregiver discrimination can also arise in a broad range of non-pandemic-related circumstances, however, and employers need to make sure they aren’t inadvertently treating caregivers differently based on preconceived notions about individuals’ roles in caregiving responsibilities.
Let’s start with the basics. “Caregiver” status isn’t a protected classification. Also, when making employment decisions, you aren’t required to completely disregard an employee’s responsibilities and commitments outside of the workplace.
So how and when do your actions related to caregiving responsibilities become impermissible discrimination? That’s what the EEOC guidance is aimed at letting employers know.
What is illegal caregiver discrimination?
Without bombarding you with all the legalese and analysis behind the EEOC’s position, below are some key takeaways. Keep in mind that caregiver status isn’t the protected classification at issue. Instead, it’s disparate treatment of caregivers based on their protected characteristics, such as gender, race, color, religion, etc.
The Age Discrimination in Employment Act (ADEA) doesn’t give older employees a right to reasonable accommodations for caregiving. An older employee may have obligations with respect to aging parents that a younger employee may not have. Still, the ADEA doesn’t afford an older employee a legal right to flexibility or time off to address those responsibilities. Under federal law, you may, however, treat older workers more favorably based on their age when it comes to flexible schedules, remote work, or other arrangements related to caregiving responsibilities. (Some states prohibit age-based favoritism.)
You aren’t required to excuse poor performance resulting from employees’ caregiving responsibilities. Employees who cannot complete their job duties satisfactorily because of caregiving responsibilities should be treated in the same manner as an employee who cannot satisfactorily complete job duties due to other reasons. You must make sure all employees in similar circumstances are treated similarly. For example, an employer may violate gender discrimination laws if it were to discipline a father who is repeatedly tardy because a daycare opens late yet sympathize with a mother in the same circumstances, imposing no discipline.
You aren’t required to reasonably accommodate an employee’s needs to provide care. Federal antidiscrimination laws don’t provide employees with a right to accommodations to handle caregiving responsibilities. Unless a state or federal law mandates otherwise, employees aren’t entitled to reduced overtime, a flexible schedule, or remote work because they have young children to care for.
If you do accommodate employees’ caregiving responsibilities, you must make sure your decisions about whom to accommodate aren’t based on an employee’s membership in any protected classification. While you aren’t obligated to offer accommodations for caregiving responsibilities, offering accommodations that are company-wide would demonstrate a lack of discriminatory bias.
Discrimination based on membership in two or more protected characteristics is impermissible. Suppose an employer offers COVID-19-related childcare leave to an African-American woman but refuses to grant such leave to an African-American man. Though the employer is giving leave for childcare to members with protected characteristics in African-American women, the employer in turn is discriminating against African-American men by not affording them the same leave for the same circumstances, leaving it open to liability based on caregiver sex discrimination.
Harassing conduct can come in different shapes and sizes. The EEOC has made it clear that harassing conduct can violate federal law. Some examples of impermissible conduct include disparaging women for focusing on their careers rather than families, suggesting men with caregiving responsibilities should focus on their careers more and caregiving less, and suggesting that older employees caring for grandchildren should be receiving care rather than providing it. While one comment isn’t likely to rise to the level of illegal harassment, behavior that becomes severe or pervasive may do so.
Caregiver discrimination extends to an employee’s association with members of a protected class. Just as discriminating against caregivers based on their own protected characteristics is a violation of federal law, discriminating against caregivers based on their association with individuals who have protected characteristics is also illegal. This commonly occurs in the caregiver scenario when an employee is giving care to someone who is disabled under the Americans with Disabilities Act (ADA). Caregiver discrimination will occur if an employer gives preferential treatment to employees who aren’t giving care to disabled individuals because they aren’t caregivers.
For example, employee A discloses to the employer that he is taking care of his wife who has multiple sclerosis. Employee B also asks his employer for time off to take care of his wife. Employee A applies for a promotion that involves substantial travel. Employee B is given the promotion despite having less experience and far worse performance than Employee A. Employee A is given the benevolent reasoning that he was denied the promotion so that he could have more time to take care of his wife.
This scenario can possibly lead to caregiver discrimination under the ADA. Why? Because the consideration of the employer toward not giving Employee A the promotion was based on his association with his disabled wife. The employer’s reasoning, however benevolent and beneficial it may be toward an employee, cannot be based on the employee’s caregiver status to individuals disabled under the ADA.
Keep in mind that despite the above, some laws—such as the Family and Medical Leave Act (FMLA)—may afford an employee time off, such as to care for a parent with a serious health condition.
How can we defend against caregiver discrimination claims?
You should base employment decisions such as hiring, disciplining, promoting, and terminating an employee on legitimate, nondiscriminatory factors. In addition, you can take proactive steps to reduce your risk of intentionally, negligently, or unknowingly engaging in discrimination based on stereotypes associated with caregiving.
First, address performance issues. If an employee’s performance suffers because of caregiving responsibilities, you are under no obligation to excuse the caregiver’s poor performance and may issue discipline up to and including termination, as long as your performance policy is followed in the same way for all non-caregiver employees.
For example, if a female employee takes a substantial amount of days off to care for her child, and in doing so, her performance plummets, you can feel safe disciplining her for this drop in performance as long as all employees are disciplined for a similar drop in performance.
Second, decide whether employees will be afforded caregiving-related accommodations. As noted above, you are under no obligation to give accommodations, such as time off, based solely on the employee’s status as a caregiver. As such, if you deny time off to an employee for childcare, this will normally be protected under law. If you deny time off only to African Americans or other employees with protected characteristics for childcare, however, it creates a scenario the EEOC has now deemed illegal.
Third, reduce the risk of harassment. This can be accomplished by establishing and periodically distributing antiharassment policies that have examples of prohibited conduct. You also should apply your harassment policies consistently and in a nondiscriminatory fashion to all employees. Respond promptly to harassment-related questions, concerns, or complaints and take prompt and appropriate corrective and preventive action if harassment occurs. Additional harassment prevention information is available on the EEOC’s website, including EEOC Harassment Task Force material, such as employer checklists and harassment risk factors and responsive strategies.
Fourth, respond to discrimination or harassment complaints related to caregiving in a prompt and adequate manner. If an employee complains, it’s important to investigate all aspects of the claim. For instance, if a male employee complains of caregiver discrimination based on sex because he isn’t being given time off to care for his child, investigate the reasons why this is so. Is there a policy in place preventing him from taking time off for childcare, such as not having accrued enough paid time off (PTO)? Or in the alternative, if the employee is complaining you don’t give time off to male employees, were other male employees given time off for childcare? A prompt and thorough investigation followed by prompt remedial action, if appropriate, is your best defense.
Finally, you can implement policies that will reduce the risk of caregiver discrimination. For example, you can implement company-wide policies for flextime, flexible work weeks, or work-from-home programs that will allow caregivers to have the time off needed to fulfill their caregiver duties neutrally, without regard to protected characteristics. Further, you can offer reduced time options, such as part-time work and job sharing, that will give caregivers options to take time off for caregiving. Such policies work to provide employees time off in a neutral manner that will help prevent caregiver discrimination claims.
The EEOC guidance gives employers reason for caution about discrimination claims stemming from caregiver obligations. You are now open to discrimination and retaliation claims based on protected characteristics as they relate to caregiver status or even for an employee’s relation to an individual with protected characteristics. As such, you should use caution when an employee discloses their status as a caregiver (even when that word isn’t used) or asks for time off to care for others. Train your employees on this new facet of discrimination and retaliation under federal laws.
Trevor R. Brice is an associate and Marylou Fabbo is a partner at the firm of Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts. Trevor has years of experience in litigation of labor and employment matters and regularly advises and represents clients in state and federal courts. Marylou heads the firm’s litigation team and is the firm’s immigration expert. You can reach them at 413-737-4753 or firstname.lastname@example.org or email@example.com.