Good news for caregivers as the Equal Employment Opportunity Commission (EEOC) issued new guidance on caregiver discrimination. The EEOC disseminated the report on March 14, 2022, and it supplements the former caregiver discrimination guidance rather than replacing it. The EEOC initiated these changes considering the Covid-19 pandemic, and even though not technically law, employers should take heed of this guidance because it’s coming from the EEOC.

Caregivers Curry More Favor With New EEOC Guidance

According to the EEOC regulations, caregivers are defined as those individuals who “care for children, partners, spouses, relatives, individuals with disabilities, or others.”

The EEOC guidance documents clarify who in fact, is under the umbrella of caregiver protection:

  • All protected characteristics under Title VII and the ADA, which includes, sex, race, disability, national origin, genetic information, or age (40 years and above).
  • Associational discrimination represents caregivers association with a person with a disability or any other aforementioned protected characteristic.
  • Intersectional discrimination or the intersection of two or more aforementioned protected characteristics.

Changes in the EEOC Guidance Against Caregiver Discrimination

The EEOC guidance clarified that an employee’s reasonable accommodation, such as telework or flexible working hours, is not guaranteed under federal law because of caregiving. However, the EEOC posited that employees who are not in a position to perform the work assigned to them due to pregnancy, childbirth, or a similar condition must be treated similarly to other employees unable to perform their duties.

The EEOC also noted that if an employee’s caregiving duties hindered their work and resulted in poor performance, an employer should not tolerate such behaviors to conform to these laws. However, an employer must be attentive in applying performance standards equally without discriminating in relation to gender, race, association with a disabled person, or any other characteristics under Federal anti-discrimination laws.

The EEOC further recommends additional training to employees to prevent cases of both harassment and retaliation in caregiving issues.

Reading this new guidance in conjunction with Title VII or the ADA, employers are not allowed to:

  • Turn down a female employee for a promotion or refuse to hire because they believe her main focus is caring for her young children while they attend school remotely.
  • Decline a male employee’s request for leave to work remotely as they perform their caregiving duties during the pandemic while granting female employees similar requests.
  • Take LGBTQ+ employees through long and tiring procedures as they request caregiver-related leave. An employer should not bother them with numerous demands for proof of marital or familial relationship with the person they are meant to care for, especially if other employees are not required to do so in a similar situation.
  • Demand proof of Covid 19 vaccination status for Chinese employees who request caregiver leave just because Asia was identified as the origin continent of the Covid 19 pandemic.

Get a Qualified New York Employment Lawyer

If you have been the target of caregiver discrimination in the workplace, working with a qualified and knowledgeable attorney is often the best course to address these issues effectively. At Risman & Risman, we provide competent legal assistance for those facing caregiver discrimination in the workplace. Call us today at 212-233-6400 to schedule a free initial consultation with our team.

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