EEOC issues guidance on federal anti-discrimination laws and employees who are caregivers outside work

The EEOC has issued a guidance explaining that employees who act as “caregivers” for their family and friends may be protected by existing anti-discrimination laws. The EEOC does not define the phrase “caregiver” and, therefore, presumably intends it in a general dictionary sense. In other words, readers should note the EEOC is not using that phrase in this guidance to mean medical or other professional caregivers. The EEOC notes that being a caregiver is not itself protected by federal anti-discrimination laws like Title VII, the ADA and the ADEA. Rather, the EEOC cautions, caregivers often fall into those laws’ other existing protected classes.

Caregiver discrimination violates federal employment discrimination laws when it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability, or genetic information (such as family medical history).  Caregiver discrimination also is unlawful if it is based on an applicant’s or employee’s association with an individual with a disability, within the meaning of the ADA, or on the race, ethnicity, or other protected characteristic of the individual for whom care is provided.  Finally, caregiver discrimination violates these laws if it is based on intersections among these characteristics (for example, discrimination against Black female caregivers based on racial and gender stereotypes, or discrimination against Christian female caregivers based on religious and gender stereotypes).

The EEOC explains it has issued this guidance because many caregivers are facing challenges due to the COVID-19 pandemic.

The COVID-19 pandemic has significantly impacted employees’ work and personal obligations, creating concurrent and, at times, competing job and caregiving demands.  Abrupt changes in work locations, schedules, or employment status required millions of Americans with caregiving responsibilities for children, spouses, partners, older relatives, individuals with disabilities, or other individuals to quickly adjust to vastly changed circumstances.

Even as the pandemic evolves, the challenge of juggling work and caregiving obligations remains.  Some workplaces, classrooms, and care facilities may operate on hybrid schedules, request or require employees to work extra shifts, or close with short notice.  Employees may need to quarantine unexpectedly if they or household members are potentially exposed to or infected with COVID-19.  Some employees who live in households with persons who are immunocompromised, children too young to be vaccinated against COVID-19, or other vulnerable individuals may be reluctant to return to the workplace.

The EEOC discusses a number of ways it believes that an employee’s off-duty caregiver activities and obligations can implicate each of the existing protected classes under federal anti-discrimination laws.