EEOC turns its focus to caregiver discrimination rules
The EEOC has updated its guidelines to federal discrimination laws to reflect new pressures on workers with caretaking duties.
Under federal law, employers can’t decide on their own to stop assigning demanding projects to a female employee just because she cares for children or family members—even if the goal is to help improve her work/life balance.
Employers can’t give flexible work schedules to women with caretaking duties but deny them to men in the same position; they’re also banned from declining to hire a job candidate based on their relationship with a person who has a disability.
Last week, the U.S. Equal Employment Opportunity Commission reiterated these rules, and more, when it updated its guidelines to federal discrimination laws to reflect new pressures on workers with caretaking duties during the pandemic.
Related: The financial costs of unpaid caregiving
Published in the wake of reports that women are returning to the workforce in lower numbers than men, the updated guidelines provide both workers and employers with much-needed direction—even if it’s arrived late to the game, employment lawyers say.
As jurisdictions across the country continue to consider laws that give even more expansive employment protections to caregivers—in some cases giving them the right to sue employers over alleged violations—lawyers say employers who aren’t already familiar with the EEOC’s stance might want to brush up soon.
This is not the first time the EEOC has weighed in on how federal discrimination laws like Title VII or the Americans with Disabilities Act apply to caregivers. In 2007, the agency clarified that while these laws don’t explicitly ban employers from discriminating against workers for being caregivers and having caregiver duties, they do ban employers from discriminating against workers based on their sex, disabilities, age, race, and other “protected” categories—stereotypes about which can often overlap with stereotypes about caregivers. The agency released supplemental advice in 2009.
Both workers and employers needed updated guidance on this subject because the pandemic has significantly changed the nature of work for so many, said Wendy Musell, who represents workers as a sole practitioner. She is also of counsel at Oakland, California-based firm Levy Vinick Burrell Hyams.
“The demands of work and home collided in very particular ways” during the pandemic, Musell said. “Workers who had very young children who couldn’t be vaccinated, and were not in school—I think the demands upon them increased dramatically while they were still being required to perform full-time jobs that may not have had the flexibility required in order to take on all of that at one time.”
While Musell said she wished the guidelines had come earlier, she added the EEOC’s “very specific examples” of workplace conduct that could be construed as discrimination, harassment or retaliation against caregivers are useful at a time when many are facing unfamiliar territory.
She pointed to the agency’s stance that it would be unlawful, for instance, for an employer to refuse to promote an employee because the employee has a child with disabilities, based on the assumption the employee would not have the bandwidth to perform the job well. The example is timely, the attorney said, given “the increase in mental health symptoms for children while they were home and not in school.”
Esther Lander, a partner at Akin Gump Strauss Hauer & Feld who represents employers, said that during the pandemic many of her clients “have been extremely flexible with caregivers with the understanding that they’re managing school closures, quarantining, and trying to work remotely—in many cases at the same time.”
The EEOC explained that this flexibility, when applied unevenly, might actually count as discriminatory conduct. “If an employer only did that for female employees under the assumption that they’re the caregivers, and did not extend the same flexibility to male employees who have caregiver responsibility, that’s how it becomes gender discrimination” against men, Lander said, citing the federal guidance.
As of November 2020, at least 195 states and local jurisdictions have laws that ban employers from discriminating against workers based on their “familial status” or “family responsibilities,” according to a report published by the Center for WorkLife Law at the University of California Hastings College of the Law. Areas
Many of these laws—which exist in New York, Delaware, Minnesota, Alaska and cities including Chicago and Boston, and cover close to 50 million employees—allow employees to sue their employers for damages.
These laws provide more protections for workers than federal discrimination laws, Lander said, since the latter do not explicitly recognize “caregivers” as a protected class, unlike race, color, religion, sex and national origin or disability. That means federal discrimination laws only protect caregivers if they are facing discriminatory conduct that is also based on their belonging to one of these protected classes.
“Let’s say that there are two women, and the employer sends one of the women on a business trip and gives her a growth opportunity. She’s single, has no children,” Lander said. The employer “doesn’t send the other woman on the business trip because of an assumption that because she’s a caregiver, she probably isn’t accessible, isn’t available to do that.”
The second woman would struggle to state a claim under federal law, because she was likely “stereotyped as somebody who is a caregiver,” and not discriminated against based on her sex, Lander explained. But under one of the local laws that make caregivers a protected class, the woman would be able make a discrimination case simply by citing her status as a caregiver.
Despite being given this advantage, workers in these jurisdictions aren’t necessarily filing a substantial number of lawsuits. Another report by the Center for WorkLife Law, published last June, found that in Alaska, Delaware, Minnesota and New York, workers have only filed 71 lawsuits against private employers since the laws went into effect, which averages out to one lawsuit per state per year.
Jessica Stender, policy director and deputy legal director at Equal Rights Advocates, which is pushing similar legislation in California, said she anticipates pushback from the state’s business community partly based on fears such a law would result in increased frivolous litigation. Citing last June’s WorkLife Law study, Stender said, “that really has not come to bear with regard to the existing laws that are on the books.”
In a letter opposing the California legislation last year, a coalition of business groups, including the state Chamber of Commerce, also argued a state law making caregivers a protected class would also limit the ability of employers to enforce policies like attendance rules. “Every adverse employment action taken by the employer could be challenged as discriminatory based on ‘family responsibilities,’” the letter stated.
“This will significantly limit an employer’s ability to address discipline issues in the workplace, maintain stability, and eradicate any issues without costly litigation.”
But Stender argues the bill could help employers. “I think this is one area in which it really is in the best interest of businesses to have a bright-line rule, so that it’s clear to employers that it is unlawful to discriminate against someone or treat someone differently because of their caregiving responsibilities,” she said.
“Because otherwise, they may be engaging in unlawful behavior, and they may be potentially liable because there’s … a tie to a protected class, but it isn’t explicitly clear to them.”
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