This week, the EEOC issued new guidance regarding pandemic-related caregiver discrimination. The EEOC assumes (probably rightly) that caregiving obligations are more likely to fall on women so discrimination against caregivers often looks like sex discrimination. While the updated guidance is specific to COVID-19, is it packed full of good practices to follow regardless of the pandemic. So, what does the EEOC want you to know about caregiver discrimination under federal employment discrimination laws? We have summed it up for you here:

1. Do not make assumptions about who may have caregiving responsibilities.

   Assuming that women need to be home with kids who are out of school and men do not is sex discrimination. If you provide telework, modified schedules or other benefits to employees with school-age children due to school closures during the pandemic, do not treat men differently than women (or make any other distinctions based on EEOC-protected characteristics). For example, under Title VII, you cannot treat female employees more favorably than their male counterparts because of a gender-based assumption about who may have caregiving responsibilities for children. If you offer telework or flexible schedules for female employees, allow male employees the same options to enable them to perform pandemic-related caregiving obligations, such as caring for young children or parents.

2. Do not exclude employees with caregiving responsibilities from desirable work assignments.

   Sometimes a boss may think it a favor to not assign a demanding or high-profile project (that may increase an employee’s advancement potential but require significant overtime or travel) because the employee has caregiving responsibilities. Again, don’t make assumptions about whether or not employees with caregiving responsibilities could or would want to work extra hours or travel away from their families to cover work responsibilities. Let the employee tell you if they need a pass. And even if an employee declines a particular work assignment because of caregiving obligations, if a similar opportunity comes up in the future, extend it to them again without making assumptions.

3. Do not consider potential healthcare costs in making hiring decisions.

   If an applicant is the primary caregiver for an individual with a disability, you cannot refuse to hire the applicant out of fear that the applicant’s dependent will increase your healthcare costs. Similarly, if you hire an applicant, you cannot reject a dependent on your health insurance because of that individual’s disability.

4. Ensure a level playing field with regard to promotion opportunities.

   Do not refuse to promote employees with caregiving responsibilities for an individual with a disability. As with any other disability-related matters, do not assume that employees will not be available or need leave simply because they are caregivers.

5. Ensure a level playing field with regard to leave opportunities.

   If you allow employees to take unpaid leave for various personal reasons (i.e., in cases where they do not qualify for leave under the FMLA) you should likewise allow employees to take leave to care for a family member who has developed complications as a result of a COVID-19 infection or to care for family members with disabilities.

Hopefully your response to many of these was, “duh!” Discrimination in the workplace based on an applicant or employee’s disability is unlawful, as is discrimination against an applicant or employee because of the individual’s association with an individual with a disability.  Nevertheless, the fact that the EEOC updated its guidance and FAQs with these specific scenarios indicates that the agency will be scrutinizing these issues.

Keep in mind that many of your employees’ obligations outside of work have either expanded or shifted. Although the number of infections has declined, many of your employees may still have to juggle work and caregiving obligations on a daily basis. Therefore:

• Be flexible and fair regardless of gender, race and ethnicity, or disability status when applying your policies.

• Avoid stereotypes in making hiring, work assignment, promotion and termination decisions.

• Focus on the applicant and/or employee’s qualifications and ensure you have specific job-related standards for all positions.

• Reinforce your policy against retaliation when an employee has to take leave to attend to caregiving responsibilities, work modified/flexible schedules or work remotely.

• Train, train, train your managers on all these issues.

The EEOC has given us a heads-up that this is on their radar.