Could Your Organization Unknowingly be Engaging in Caregiver Discrimination?
By Trevor R. Brice and Marylou Fabbo - Skoler, Abbott & Presser, P.C.
April 26, 2022
The Equal Employment Opportunity Commission (EEOC) recently updated its policy guidance on caregiver discrimination. While this update was prompted by the novel challenges COVID-19 placed on workers and employers alike, caregiver discrimination can arise in a broad range of circumstances other than those related to the pandemic. Employers need to make sure that they are not inadvertently treating caregivers differently based on pre-conceived notions about individuals’ roles in caregiving responsibilities.
Let’s start with the basics. “Caregiver” status is not a protected classification. Also, when making employment decisions, an employer is not required to completely disregard an employee’s responsibilities and commitments outside of the workplace. So how and when does an employer’s actions related to caregiving responsibilities become impermissible discrimination? That’s what the EEOC Guidance is aimed at letting employers know.
What is Illegal Caregiver Discrimination?
Without bombarding you with all the legalese and analysis behind the EEOC’s position, bulleted below are some key takeaways. Keep in mind that caregiver status is not the protected classification at issue. Instead, it’s disparate treatment of caregivers based on their protected characteristics (such as gender, race, color, religion), etc.
• The Age Discrimination in Employment Act (ADEA) does not give older employees a right to reasonable accommodations for caregiving. An older employee may have obligations with respect to aging parents that a younger employee may not have. Still, the ADEA does not afford an older employee a legal right to flexibility or time off to address those responsibilities. Under federal law, employers may, however, treat older workers more favorably based on their age when it comes to flexible schedules, remote work or other arrangements related to caregiving responsibilities. (Some states prohibit age-based favoritism.)
• Employers are not required to excuse poor performance resulting from employees’ caregiving responsibilities. Employees who cannot complete their job duties satisfactorily because of caregiving responsibilities should be treated in the same manner as an employee who cannot satisfactorily complete job duties due to other reasons. Employers must make sure all employees in similar circumstances are treated similarly. For example, an employer may violate gender discrimination laws if it were to discipline a father who is repeatedly tardy because a daycare opens late, yet sympathize with the mother in the same circumstances, imposing no discipline.
• Employers are not required to reasonably accommodate an employee’s needs to provide care. Federal anti-discrimination laws do not provide employees with a right to accommodations to handle caregiving responsibilities. Unless a state or federal law mandates otherwise, an employee is not entitled to reduced overtime, a flexible schedule or remote work because the employee has young children to care for. If employers do accommodate employees’ caregiving responsibilities, they must make sure that their decisions about whom to accommodate are not based on an employee’s membership in any protected classification. While employers are not obligated to offer accommodations for caregiving responsibilities, offering accommodations that are company-wide would demonstrate a lack of discriminatory bias.
• Discrimination based on membership in two or more protected characteristics is impermissible. Suppose an employer offers COVID-19-related leave to care for children to an African American woman but refuses to grant such leave to an African American man. Though the employer is giving leave for childcare to members with protected characteristics in African American women, the employer in turn is discriminating against African American men by not affording them the same leave for the same circumstances, leaving the employer open to liability based on caregiver sex discrimination.
• Harassing conduct can come in different shapes and sizes. The EEOC has made it clear that harassing conduct can violate federal law. Some examples of impermissible conduct include disparaging women for focusing on their careers rather than families, suggesting men with caregiving responsibilities should focus on their careers more and caregiving less, and suggesting that older employees caring for grandchildren should be receiving care rather than providing it. While one comment is not likely to rise to the level of illegal harassment, behavior that becomes severe or pervasive may do so.
• Caregiver discrimination extends to an employee’s association with members of a protected class. Just as discriminating against caregivers based on their own protected characteristics is a violation of federal law, discriminating against caregivers based on their association with individuals who have protected characteristics is also illegal. This commonly occurs in the caregiver scenario when an employee is giving care to someone who is disabled under the Americans with Disabilities Act (ADA). Caregiver discrimination will occur if an employer gives preferential treatment to employees who are not giving care to disabled individuals because they are not caregivers. For example, employee A discloses to the employer that he is taking care of his wife who has multiple sclerosis. Employee B also asks his employer for time off to take care of his wife. Employee A applies for a promotion that involves substantial travel. Employee B is given the promotion despite having less experience and far worse performance than Employee A. Employee A is given the benevolent reasoning that he was denied the promotion so that he could have more time to take care of his wife. This scenario can possibly lead to caregiver discrimination under the ADA. Why? Because the consideration of the employer towards not giving employee A the promotion was based on employee A’s association with his disabled wife. The employer’s reasoning, however benevolent and beneficial it may be towards an employee, cannot be based on the employee’s caregiver status to individuals disabled under the ADA.
(Keep in mind that despite the above, some laws—such as the Family and Medical Leave Act—may afford an employee time off, such as to care for a parent with a serious health condition.)
How Can an Employer Defend Itself Against Claims of Caregiver Discrimination?
Employers should base employment decisions, such as hiring, disciplining, promoting and terminating an employee on legitimate, non-discriminatory factors. In addition, employers can take proactive steps to reduce their risk of intentionally, negligently or unknowingly engaging in discrimination based on stereotypes associated with caregiving.
First, address performance issues. If an employee’s performance suffers due to caregiving responsibilities, the employer is under no obligation to excuse the caregiver’s poor performance and may issue discipline up to and including termination, as long as the employer’s performance policy is followed in the same way for all non-caregiver employees. For example, if a female employee takes a substantial amount of days off in order to care for her child, and in doing so, her performance plummets, the employer can feel safe disciplining her for this drop in performance as long as all employees are disciplined for a similar drop in performance.
Second, decide whether employees will be afforded caregiving-related accommodations. As noted above, employers are under no obligation to give accommodations, such as time off, based solely on the employee’s status as a caregiver. As such, if an employer denies time off to an employee for childcare, this will normally be protected under law. However, if an employer denies time off to only African Americans or other employees with protected characteristics for childcare, for example, it creates a scenario that the EEOC has now deemed illegal.
Third, reduce the risk of harassment. This can be accomplished by establishing and periodically distributing anti-harassment policies that have examples of prohibited conduct. 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 is available on the EEOC’s website, including EEOC Harassment Task Force material, such as employer checklists and harassment risk factors and responsive strategies.
Fourth, respond to complaints of discrimination or harassment related to caregiving in a prompt and adequate manner. If an employee complains, it is important that all aspects of the employee’s claim are investigated. For instance, if a male employee complains of caregiver discrimination based on sex because he is not being given time off to care for his child, investigate the reasons why this is so. Is there a policy in place that is preventing him from taking time off for childcare, such as the employee has not accrued enough PTO? Or in the alternative, if the employee is complaining that the employer does not give time off to male employees, were other male employees given time off for childcare? A prompt and thorough investigation followed by prompt remedial action, if appropriate, is an employer’s best defense.
Finally, employers can implement policies that will reduce the risk of caregiver discrimination. For example, an employer can implement company-wide policies for flextime, flexible work weeks or work from home programs that will allow caregivers to have the time off needed to fulfill their caregiver duties neutrally, without regard to protected characteristics. Further, employers can offer reduced time options, such as part-time work and job sharing, that will give caregivers options to take time off for caregiving. Policies like these work to provide employees time off in a neutral manner that will help prevent caregiver discrimination claims.
The guidance issued by the EEOC gives employers reason for caution in regard to claims of discrimination stemming from caregiver obligations. Employers are now open to discrimination and retaliation claims based on protected characteristics as they relate to caregiver status or even for an employee’s relation to an individual with protected characteristics. As such, employers should use caution when an employee discloses their status as a caregiver (even when that word is not used) or asks for time off to care for others and train their employees on this new facet of discrimination and retaliation under federal laws.