COVID-19 UPDATE: THE EEOC ISSUES NEW CAREGIVER DISCRIMINATION GUIDANCE
On March 14, 2022, the EEOC published new guidance applying existing federal discrimination law (ADA, Title IV, ADEA, GINA, etc.) principles involving caregivers to situations related to the pandemic. While the guidance does not have the force of law, it provides insight as to how federal and state agencies (which often follow EEOC guidance) may issue determinations. Moreover, the guidance applies to situations broader than the pandemic, including accommodation for caregivers and pregnant workers generally.
The guidance, among other things:
- Evaluates when discrimination against applicants or employees with caregiving responsibilities can violate federal employment discrimination laws.
- Provides examples of unlawful discrimination against employees with caregiving responsibilities.
- States males and persons within the LGBTAI+ community are protected from caregiving discrimination on the basis of sex.
- States that employees with caregiving do not have a right under federal discrimination laws to reasonable accommodations unless they are unable to perform their job duties due to pregnancy, childbirth or related medical conditions or are entitled to leave under the FMLA for caregiving responsibilities.
- Provides examples of pandemic-related pregnancy discrimination.
- Evaluates whether employers are required to accommodate pregnant workers.
- Explains how discrimination may arise where an employee/applicant has caregiving responsibilities for a person with a disability.
- Provides examples of how unlawful race or national origin discrimination may arise for employees who have caregiving responsibilities.
- States older workers are not entitled to accommodations because of their age for caregiving or any other purpose.
- Provides examples of harassing conduct related to caregiving responsibilities.
- Provides examples of unlawful retaliation against employees with caregiving responsibilities.
The new EEOC guidance is available here.