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On March 14, 2022, the Equal Employment Opportunity Commission (EEOC) issued 18 frequently asked questions and answers (FAQs) about the COVID-19 pandemic and its effect on employees’ work and personal obligations.

The FAQs specifically address how employers may approach the competing job and caregiving demands of their employees and applicants without violating EEOC-enforced federal fair employment laws during the pandemic. These laws include Title VII of the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA) and others.

While clarifying that caregiver status alone is not a protected trait under EEOC-enforced laws, the FAQs also describe how certain employer actions related to an individual’s caregiver status may be unlawful. For example, adverse actions are unlawful if based on a protected trait, such as sex, race or disability. This article provides the EEOC’s guidance on COVID-19 and caregiver discrimination.

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COVID-19 and Caregiver Discrimination

The COVID-19 pandemic has significantly impacted employees’ work and personal obligations, creating concurrent and, at times, competing job and caregiving demands. Abrupt changes in work locations, schedules or employment statuses required millions of Americans with caregiving responsibilities for children, spouses, partners, older relatives, individuals with disabilities or other individuals to quickly adjust to fluctuating circumstances.

Even as the pandemic evolves, the challenge or juggling work and caregiving obligations remains. Some workplaces, classrooms and care facilities may operate on hybrid schedules, request or require employees to work extra shifts, or close with short notice. Employees may need to quarantine unexpectedly if they or household members are potentially exposed to or infected with COVID-19. Some employees who live in households with persons who are immunocompromised, children too young to be vaccinated against COVID-19 or other vulnerable individuals may be reluctant to return to the workplace.

Discrimination against a person with caregiving responsibilities may be unlawful under federal employment discrimination laws enforced by the EEOC. In the following FAQs, the EEOC applies established policy positions to discuss when discrimination against applicants and employees related to pandemic caregiving responsibilities may violate Title VII or the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA) or other EEOC-enforced laws.

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 is also 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). See Question 11 for additional information about intersectional discrimination.

The EEOC’s best practices document includes suggestions about how employers may incorporate caregiver issues into their EEOC policies. See Question 15 for additional information about issuing, explaining and applying employment policies.

Federal employment discrimination laws do not prohibit employment discrimination based solely on caregiver status. However, some state or local nondiscrimination laws may provide broader protections for workers with caregiving responsibilities. Employees with caregiving responsibilities may  provide broader protections for workers with caregiving responsibilities. Employees with caregiving responsibilities may also have rights under other laws, including Family and Medical Leave Act (FMLA) enforced by the U.S. Department of Labor (DOL) or similar state or local laws. This document only addresses rights under the federal employment discrimination laws enforced by the EEOC.

2 – What are some examples of unlawful discrimination against female applicants or employees with caregiving responsibilities?

Unlawful discrimination based on female workers’ caregiving may arise in a variety of ways, often connected to gender-based stereotypes about caregiving responsivities or roles. For example, it would violate the law if an employer refused to hire a female applicant or refused to promote a female employee based on assumptions that, because she was female, she would (or should) focus primarily on caring for her young children, parents or other adult relatives. Employers also may not penalize female employees more harshly than similarly situated male employees for absences or missed deadlines due to pandemic-related caregiving duties.

It is unlawful for employers to base employment decisions on gender stereotypes, even if those decisions are well-intentioned. For example, employers may not:

  • Decline to assign female caregivers demanding or high-profile projects that increase employees’ advancement potential but require overtime or travel;
  • Reassign such projects from female caregivers, based on employers’ assumptions that such actions will make it easier for female employees to juggle work and personal obligations; or
  • Make employment decisions based on the belief that female caregivers cannot or would prefer not to work extra hours or be away from their families if a family member is infected with or exposed to COVID-19.

However, if employees with caregiving responsibilities request work assignments that have a predictable schedule or that do not require extra hours or travel, employers may grant such requests at their discretion, as long as they do so in a nondiscriminatory manner.

3 – Are male applicants and employees protected from caregiver discrimination based on sex?

Yes. It is unlawful for employers to discriminate against male caregivers based on their gender or based on gender stereotypes, such as that of men as breadwinners and women as caretakers. For example, it would be unlawful for an employer to deny men leave or permission to work flexible schedules to care for family members with COVID-19 or to handle other pandemic-related caregiving duties if the employer grants such requests when made by similarly situated women. It also would be unlawful, for example, for an employer to refuse requests for exceptions from return-to-work policies or attendance policies made by men with caregiving responsibilities on the basis of their gender.

4 – Are LGBTQI+ applicants and employees protected from caregiver discrimination based on sex?

Yes. It is unlawful for employers to discriminate against LGBTQI+ applicants and employees with caregiving responsibilities based on their sexual orientation or gender identity. For example, employers may not 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. Employers also may not, for example, deny caregiving leave to an employee with a same-sex partner based on the sexual orientation or gender identity of the employee or the employee’s partner.

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. See Question 8.

In addition, employees with caregiving responsibilities may have rights under other laws such as the right to leave for covered caregiving purposes under the FMLA or 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.

6 – What are some examples of pandemic-related pregnancy discrimination?

Pregnancy discrimination related to the pandemic may arise in a variety of ways. For example, it would be unlawful for an employer to refuse to hire pregnant applicants, or to demote or refuse to promote pregnant employees, based on assumptions that these individuals will or should be primarily focused on ensuring safe and healthy pregnancies. It also would be unlawful, for instance, for an employer to allow employees to routinely harass their pregnant co-workers for maintaining a physical distance from colleagues, changing their schedules, teleworking or taking other actions to avoid being exposed to or infected with COVID-19. See Questions 14 and 15 for additional information about harassment.

Pregnant employees may also have a right to accommodations in certain circumstances. See Question 8 for additional information.

7 – Can employers unilaterally require pregnant employees to telework or adjust their schedules to limit contact with colleagues, customers or others whose COVID-19 or vaccination status may be unknown, to help keep pregnant employees safe?

No. Employment decisions based on pregnancy are unlawful, even if they are made for purportedly benevolent reasons. However, employers may offer to discuss whether pregnant employees may wish to voluntarily adopt these or other measures.

8 – Are employers required to accommodate pregnant workers?

Pregnant workers may have a right under Title VII to benefits such as modified duties alternative assignments or leave, and/or may have a right to reasonable accommodations under the ADA or the Rehabilitation Act.

Under Title VII, if employers provide light duty, modified assignments or work schedules, or leave to employees who are temporarily unable to perform job duties, they must provide these options to employees who are temporarily unable to perform job duties because of pregnancy, childbirth or a related medical condition. For example, if employees who have severe fatigue, breathing difficulties or headaches due to COVID-19 are granted leave to recover or light duty when they return to work, employers must provide these options to employees who are temporarily unable to work to perform some job duties because of pregnancy, childbirth or a related medical condition.

Pregnancy is not a disability under the ADA, but some pregnancy-related medical conditions may be disabilities under those laws. Pregnant employees with such disabilities are entitled to reasonable accommodations if they’re needed to perform essential job functions and if the accommodations would not pose an undue hardship (significant difficulty or expense) for their employers.

Other federal, state and local laws may also provide workers with various protections, including the right to an accommodation due to pregnancy and the right to reasonable break time and a private place at work to express breast milk for nursing employees.

9 – How much unlawful discrimination based on an applicant’s or employee’s pandemic-related caregiving responsibilities for an individual with a disability arise?

It is unlawful for an employer to discriminate against an applicant or employee because of that person’s association with an individual with a disability. As a result, applicants and employees with caregiving responsibilities for an individual with a disability, which may include some individuals with COVID-19 or its lingering symptoms, are protected from discrimination based on their association with the care recipient. For example, it would be unlawful under the ADA for an employer to refuse an employee’s request for unpaid leave to care for a parent with long COVID-19, which approving other employees’ requests for unpaid leave to handle other personal responsibilities. Depending on the circumstances, this may also violate the FMLA enforced by the DOL or similar state or local laws.

It also would be unlawful, for example, for an employer to refuse to promote an employee – who is the primary caregiver of a child with a mental health disability that worsened during the pandemic – based on the employer’s assumption that the employee would not be fully available to colleagues and clients – or committed to the job – because of the employee’s caregiving obligations for a child with a disability. And it would be unlawful, for example, for an employer to decline to hire an applicant because the applicant’s wife has a disability that puts her at a higher risk of severe illness from COVID-19, and the employer fears that its health insurance costs will increase if the applicant’s wife is added to its health care plan. Alternatively, if this applicant is hired, it would be unlawful for the employer to refuse to add the applicant’s wife to the organization’s health care plan because of the wife’s disability.

10 – What are some examples of unlawful race or national origin discrimination involving employees with caregiving responsibilities?

Discrimination based on an employee’s race or national origin, including race- or ethnicity-based stereotypes or generalities related to the pandemic, is unlawful. For example, employers may not subject Asian employees with caregiving responsibilities to more scrutiny by requiring additional proof of Asian caregivers’ COVID-19 vaccination statuses or additional proof of their families’ COVID-19 vaccination by an independent third party (someone other than the employer or the employer’s agent) because COVID-19 was first identified in an Asian country.

Employers also may not apply different standards or require different processes for pandemic-related caregiving requests based on employees’ or care recipients’ races or national origins. For example, it would be unlawful for an employer to deny an employee’s request for leave to care for a cousin from another country who was recently diagnosed with COVID-19 because a COVID-19 variant was first identified in the cousin’s country of origin. It would also be unlawful, for example, for an employer to require that Black or Asian employees submit requests for leave, flexible schedules or telework in writing and wait several days for a response, while permitting similarly situated employees of other races or national origins to make such requests verbally and receive responses immediately.

Discrimination based on citizenship or immigration status against workers with caregiving responsibilities can also be unlawful under a law enforced by the U.S. Department of Justice (DOJ).

11 – What is an example of unlawful intersectional discrimination involving applicants or employees with caregiving responsibilities?

Employment decisions are illegal if they are based on a characteristic protected by federal employment discrimination laws, such as gender, race or national origin. These decisions are also illegal if they are based on the intersection of two or more characteristics protected by the laws the EEOC enforces. For example, an employer may not refuse to approve pandemic-related leave requests by male Native American employees with caregiving responsibilities if it approves such requests when made by similarly situated female Native American employees or similarly situated employees of other races or national origins.

12 – Are older employees entitled, because of their age, to accommodations such as telework, flexible schedules or leave to enable them to care for family members?

No. The Age Discrimination in Employment Act (ADEA) does not give older employees a right to a reasonable accommodation for caregiving or any other purpose. However, employers may, at their discretion, grant older workers’ requests for leave, flexible schedules, telework or other arrangements to enable them to perform pandemic-related caregiving duties. The ADEA does not prohibit employers from treating older workers more favorably than younger workers because of the older workers’ age, although some state laws may not allow age-based favoritism of older workers.

The ADEA requires employers to refrain from discriminating against older workers based on their age-related stereotypes. Employers may violate the law if they base employment decisions on assumptions that older workers with caregiving responsibilities need special treatment or unilaterally impose different terms and conditions of employment on older workers with caregiving responsibilities – based on older workers’ age or age-related stereotypes. For example, if an older worker is caring for a grandchild while the child’s parent recovers from COVID-19, it would be unlawful for the worker’s employer to require the worker to accept a reduced schedule out of concern that, because of the worker’s age, the worker lacks the stamina to perform full-time job duties effectively while also caring for a young child.

13 – Are employers required to excuse poor performance if it results from employees’ caregiving responsibilities during the pandemic?

No, employers are not required to excuse poor performance resulting from employees’ caregiving duties. For example, if an employer provides written warnings to employees who repeatedly arrive late to work, the employer may issue those warnings to employees who are repeatedly late because of pandemic-related caregiving obligations.

However, employers may not apply performance standards inconsistently to employees based on gender, race, association with an individual with a disability, or another characteristic or set of characteristics covered by federal employment discrimination laws. For example, employers may not penalize Hispanic employees for missing meetings while supervising their children’s virtual school attendance or taking relatives to medical appointments, while overlooking such conduct of employees of other ethnicities.

Employers may also wish to consider the challenges imposed by the pandemic on all employees, which may include expanded caregiving responsibilities, and determine whether (and under what circumstances) adjustments can be made to work schedules, meeting schedules, or other work-related tasks or events to enable employees to balance work and personal obligations without impairing performance or productivity.

14 – What are some examples of harassing conduct related to employees’ caregiving responsibilities during the pandemic?

Harassment related to employees’ pandemic caregiving responsibilities may arise in a variety of ways. Harassment may occur, for instance, in person or online, at on-site or remote workplaces, or while teleworking. For this conduct to violate the laws enforced by the EEOC,  it must meet specific legal requirements. Employers should ensure that managers know how to recognize and respond to harassing conduct. See Question 15 for additional information about harassment prevention. Examples of harassing conduct related to employees’ pandemic-related caregiving responsibilities that may contribute to an unlawful, hostile work environment include:

  • Disparaging female employees for focusing on their careers rather than their families during a traumatic event such as a pandemic;
  • Accusing female employees, without justification, of being preoccupied with keeping their families safe from COVID-19, distracted from their professional obligations and insufficiently committed to their jobs;
  • Criticizing or ridiculing male employees for seeking to perform, or performing, caregiving duties, such as taking leave to care for a child who is quarantining after potential COVID-19 exposure;
  • Limiting overtime or overnight travel based on gender stereotypes of men as breadwinners and women as caretakers;
  • Asking intrusive questions or making offensive comments about gay or lesbian employees’ sexual orientations after they request leave to care for their same-sex spouses, partners or ex-partners who have COVID-19 symptoms;
  • Insulting Asian employees caring for family members with COVID-19 because COVID-19 was first identified in an Asian country;
  • Assigning unreasonable amounts of work or imposing unrealistic deadlines on employees of color because they requested or received leave for pandemic-related caregiving purposes;
  • Questioning, without merit, the professional dedication of employees caring for individuals with disabilities who are at a higher risk of severe illness from COVID-19 or mocking such employees on that basis for taking pandemic precautionary measures to avoid infection;
  • Stating that older employees caring for their grandchildren should be receiving care, not providing it, given the employees’ age or asking whether the recipient of care is “worth the risk,” given older individuals’ higher risk of severe illness from COVID-19.

15 – How can employers help prevent harassment associated with pandemic-related caregiving responsibilities?

Employers can help prevent harassment by, among other things, periodically distributing harassment policies and complaint procedures to all employees, posting the documents in accessible areas on-site and online, periodically training all employees about the policies and procedures, and demonstrating leadership’s commitment to creating and maintaining a work environment free from harassment. Employers also should apply their 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 in available on the EEOC’s website.

16 – What are some examples of unlawful retaliation against employees with caregiving responsibilities? What can employers do to help prevent such conduct?

The laws enforced by the EEOC prohibit employers from retaliating against employees for reporting employment discrimination, participating in employment discrimination proceedings (such as investigations or lawsuits) or reasonably opposing conduct believed to be employment discrimination. Employees are protected from retaliation even if the alleged conduct at issue is not unlawful discrimination. Federal employment discrimination laws protect individuals against any form of retaliation that would be reasonably likely to deter someone from engaging in protected activity. Information about unlawful retaliation related to COVID-19 under the federal EEO laws is available in the EEOC’s COVID-19 What You Should Know document.

Unlawful retaliation against employees with caregiving responsibilities may occur in a number of ways. For example, an employer may not refuse to recall an employee from a pandemic-related furlough because she filed a pregnancy discrimination complaint, or change the schedule of an employee with young children to conflict with school drop-off and pick-up times because she participated in a discrimination investigation. An employer also may not transfer a manager who is the primary caregiver of an older relative in a local assisted living facility to a distant office for refusing to obey a discriminatory order (for example, an order to refuse to hire an applicant, or to fire an employee, because of the individual’s race).

Employers can help prevent unlawful retaliation in a variety of ways. For example, employers should train all employees with managerial responsibilities about their obligations under federal employment discrimination laws, including their nonretaliation obligations. Employers should also notify complainants and other individuals who participate in employment discrimination proceedings about their right to not be subjected to retaliation and explain what they should do if they believe they have been subjected to retaliation. Further, employers should remind relevant individuals that retaliation is illegal and prohibited. This includes individuals accused of employment discrimination, individuals who participate in their defense in discrimination proceedings and managers of participants in discrimination proceedings. Employers should also take appropriate preventive and corrective action if they determine that retaliation has occurred.

17 – What should employees do if they believe they are being subjected to unlawful discrimination related to their caregiver status?

If an employee with caregiving responsibilities believe they are being discriminated against because of their gender, race, disability, association with an individual with a disability or another reason protected by the laws enforced by the EEOC, they may report the discrimination internally to their employer. Private-sector and state and local government employees may report discrimination to the EEOC or to a state or local government agency that enforces state or local employment discrimination laws. Federal employees must report discrimination to their agency’s EEO Office. Employees may report discrimination based on citizenship or immigration status to the Immigrant and Employee Rights Section of the DOJ’s Civil Rights Division.

Private-sector and state and local government applicants and employees have 180 or 300 days to file a charge of discrimination with the EEOC. Different time limits may apply to complaints filed with state or local anti-discrimination agencies. Federal government applicants and employees have 45 days to contact an EEO Counselor. The sooner a complaint is made, the sooner the situation may be addressed.

18 – How can employers obtain additional information about preventing and responding to unlawful caregiver discrimination?

Additional information about caregiver discrimination is available in the EEOC’s caregiver discrimination policy guidance, associated fact sheet and employer best practices document. Additional information about the application of the laws enforced by the EEOC that relate to COVID-19 is available in the EEOC’s COVID-19 What You Should Know document.

To request information about EEOC outreach and education regarding unlawful caregiver discrimination under federal employment discrimination laws, employers may contact their local EEOC Outreach and Education Coordinator. Small businesses may contact their local EEOC Small Business Liaison.

Source: Equal Employment Opportunity Commission

This Compliance Overview is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice. Design ©2022 All rights reserved.