Thursday, March 17, 2022

Just because “caregiver” isn’t a protected class doesn’t mean it isn’t sometimes illegal to discriminate against them

No matter how many times you read our federal workplace anti-discrimination laws, you won't find the word "caregiver" among the litany of protected classes. Yet, it has been clear since the earliest days of this blog that in the proper circumstances "caregiver discrimination" is illegal.

Earlier this week the EEOC updated its Covid-19 guidance to discuss these caregiver-related issues.

Caregiver discrimination violates the laws enforced by the EEOC if it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, national origin, disability, age (40 or older), or another characteristic covered by federal employment discrimination laws. Caregiver discrimination also is unlawful if it is based on the caregiver’s association with an individual with a disability, or on the race, ethnicity, or other protected characteristic of the individual receiving care.

This means that an employer cannot treat caregivers differently based on a protected class (e.g., intentionally treating moms differently than dads, whites differently than non-whites, etc.).

It also means that an employer cannot make employment decisions or take adverse actions based on stereotypes about one's caregiver status related to a protected class. What could this look like in practice? The EEOC offers some examples.

  • Reassigning work based on assumptions that female caregivers cannot, should not, or would not want to work extra hours or be away from their families if a family member is infected with or exposed to Covid-19.
  • Denying male employees permission to work remotely or to adjust their schedules to enable them to perform pandemic-related caregiving obligations while granting such requests when made by similarly situated female employees.
  • Refusing to hire an applicant, or firing an employee, based on fear that their care recipient will increase healthcare costs.
  • Refusing to promote employees with caregiving responsibilities for an individual with a disability based on the assumption that they will take a significant amount of leave for caregiving purposes.
These aren't new legal issues, but they certainly are ones that the pandemic brought to the forefront in many workplaces.