COVID-19: New EEOC Guide Focuses Employees with Care Responsibilities | Bryan Cave Leighton Paisner
COVID-19: New EEOC Guide Focuses Employees with Care Responsibilities |  Bryan Cave Leighton Paisner

COVID-19: New EEOC Guide Focuses Employees with Care Responsibilities | Bryan Cave Leighton Paisner

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

As the guidance makes clear, discrimination on the basis of care liability alone is not prohibited under federal employment laws enforced by the EEOC, including, but not limited to, Section VII of the Civil Rights Act of 1964 (“Section VII”), the age of Discrimination in Employment Act (“ADEA”) and the Americans with Disabilities Act (“ADA”) (“EEOC Employment Laws”), but if the discrimination is linked to or intertwined with another recognized protected status (such as gender, race, age or disability) , EEOC’s employment laws can still be triggered.

The guide contains a number of examples of this form 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 the applicant / employee, because she was a woman, would primarily (or should) focus on caring for her children while attending school distance, then e.g. 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 primarily or should be focused on ensuring a safe and healthy pregnancy, then such action would be contrary to section WE YOU.
  3. If an employer, based on gender stereotypes, refused a male employee’s request to work on a flexible schedule to care for a family member with COVID-19, but responds to such requests when made by female employees with the same situation, such a act be contrary to Title VII.
  4. If an employer required LGBTQI + employees to provide proof of a marital relationship in order to take time off to take care of the employee’s partner who has COVID-19 but did not require such proof from other employees, then such an action would be in contrary to Title VII.
  5. If an employer rejected an employee’s request for unpaid leave to care for a parent with long COVID-19 (assuming the parent’s symptoms qualified as a disability), but met other employees’ requests for unpaid leave to take care of other personal obligations, then such would action violates the ADA because the law also makes it illegal for an employer to discriminate against an employee because of a person’s affiliation with a person with a disability.

In addition to highlighting examples of discrimination, the guide also provides advice on care-related scenarios that may trigger housing obligations and / or may qualify as unlawful harassment and / or retaliation under EEOC employment law.

It is important to remember that EEOC employment laws are not the only laws that can apply to an employee with care responsibilities. Federal employment laws enforced by agencies other than the EEOC, such as the Family and Medical Leave Act (enforced by the Department of Labor), as well as state and / or local laws may provide additional protection to employees. As such, while the guidance provides employers with very useful information, it should not be the only guidance or consideration that an employer consults before adversely affecting employment measures against a caregiver under the COVID-19 pandemic.

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