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Written By ESR News Blog Editor Thomas Ahearn
In March of 2022, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance about “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law” and also updated guidance on “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to explain discrimination against employees and job seekers with family caregiving responsibilities.
Based on existing EEOC policy guidance, these two documents outline how discrimination against applicants or employees with caregiving responsibilities can violate federal equal employment laws when based on a protected characteristic such as sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 years old or older), disability, or genetic information.
During the COVID-19 pandemic, employees who are caregivers have adjusted to quarantine requirements or abrupt closures or schedule changes at schools, care facilities, childcare centers, or businesses. However, an employer’s assumptions or stereotypes about caregivers may result in illegal discrimination when those assumptions lead the employer to make employment decisions based on a protected characteristic.
For example, it would be illegal if an employer refused to hire an applicant who is the primary caregiver of an individual with a disability who is at higher risk of complications from COVID-19 out of fear that the employer’s healthcare costs would increase. It also would be unlawful for an employer to refuse to promote a woman based on assumptions that, because she was female, she would focus primarily on caring for her children.
“As the pandemic evolves, and the country moves to a new normal, we cannot assume caregiving obligations have ended. By ensuring that caregivers know their rights and employers understand their responsibilities, the EEOC will help ensure that America’s recovery from the pandemic is an equitable one,” EEOC Chair Charlotte A. Burrows stated in a press release about the guidance.
“The pandemic has heightened our awareness of the vital role that caregivers play in our society,” EEOC Vice Chair Jocelyn Samuels stated in the press release. “The real-world scenarios in this technical assistance show how federal EEO laws apply to employees who have caregiving responsibilities and how employers can, within those laws, better support caregivers in balancing work and family responsibilities.”
In addition to this new technical assistance document and related “What You Should Know” updates, the EEOC also released a short video explaining caregiver discrimination in English and Spanish. More information about caregiver discrimination is available in the EEOC’s caregiver discrimination policy guidance, associated fact sheet, and employer best practices document.
The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. If applicants or employees with caregiving responsibilities believe they have been discriminated against on any protected basis, they may file a charge of discrimination with the EEOC to seek enforcement of their rights. To learn more about the EEOC, visit www.eeoc.gov.
Employment Screening Resources (ESR) – a service offering of ClearStar, a leading provider of Human Capital Integrity℠ technology-based services specializing in background checks and medical screening – offers criminal record searches that comply with the EEOC’s guidance on the use of criminal records by employers and also an ESR EEOC Toolkit to help employers develop compliant protocols. To learn more, contact ESR today.
NOTE: Employment Screening Resources (ESR) – a service offering of ClearStar – does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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