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Tips to Employers: Staying Ahead of EEO Challenges Faced by COVID-19

April 03, 2020

We are treading unchartered waters in this unprecedented time. With school closures attempting to minimize the spread of COVID-19, employers may face new challenges with managing a workforce that now has limited resources for childcare, which only increases family responsibilities. Therefore, we want to ensure that our clients are kept abreast of any challenges that can come your way.

What is caregiver discrimination?

Caregiver discrimination, also known as family responsibilities discrimination, is discrimination in the workplace based on an employee’s real or perceived responsibility to care for a family member.

What are the current laws governing caregiver discrimination?

There is no federal law that expressly prohibits caregiver discrimination. However, employees may be protected by Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act and the Family and Medical Leave Act. It is also imperative to note that some states have adopted laws and some categories of employees may have additional protection. The following are some examples:

  • Alaska Statute §18.80.220 prohibits discriminating against an employee based on "parenthood."
  • D.C. Human Rights Act §§2-1401.01, 2-1401.02(12), 2-1402.11, 2-1411.02 prohibits employment discrimination based on "family responsibilities."
  • Some cities and counties have provisions similar to D.C. including the following: Cook County, Illinois; Atlanta, Georgia; Milwaukee, Wisconsin; and Tampa, Florida.
  • Federal Executive Order 13152 prohibits employment discrimination against federal employees because of their "status as a parent."
  • Conn. General Statute § 46a-60(a)(9) prohibits employers in Connecticut from requesting or requiring information from applicants or employees relating to their familial obligations.
  • Over 55 localities prohibit employment discrimination based on FRD under different statutes. Check with an employment attorney in your area to find out how you might be protected.
  • The Civil Service Reform Act of 1978 prohibits marital and parental status discrimination.

Who is affected by caregiver discrimination?

Despite the fact that caregiving responsibilities disproportionately affect women, protections apply to all employees – men included. It is also imperative to note that caregiving responsibilities extend beyond children and spouses and cover any individual that an employee has primary caretaking responsibilities.

What are current trends in this area of litigation?

According to the Center for WorkLife Law at the University of California (San Francisco), the number of caregiver-discrimination lawsuits has tripled in the past decade when compared to the previous decade. This growing number of lawsuits includes claims from mothers, fathers and those that care for ill or disabled family members. According to one of its senior advisors, caregiver discrimination is one of the fastest-growing areas of employment law. Based on a report by the Center for WorkLife, employees were awarded nearly half a billion in verdicts and settlements this past decade. These numbers do not include any monetary relief for confidential settlement agreements.

What is EEOC’s position?

EEOC issued guidance explaining the circumstances under which discrimination against workers with caregiver responsibilities might constitute discrimination based on sex, disability or other characteristics protected by federal employment discrimination laws.

What are some common circumstances under which discrimination against a worker with caregiving responsibilities might constitute unlawful disparate treatment under federal EEO law?

According to EEOC, the following constitute several examples:

  • Treating male caregivers more favorably than female caregivers: Denying women with young children an opportunity that is available to men with young children.
  • Sex-based stereotyping of working women:
    • Reassigning a woman to less desirable projects based on the assumption that, as a new mother, she will be less committed to her job
    • Reducing a female employee’s workload after she assumes full-time care of her niece and nephew based on the assumption that, as a female caregiver, she will not want to work overtime.
  • Subjective decision making: Lowering subjective evaluations of a female employee’s work performance after she becomes the primary caregiver of her grandchildren, despite the absence of an actual decline in work performance.
  • Discrimination against working fathers: Denying a male caregiver leave to care for an infant under circumstances where such leave would be granted to a female caregiver.
  • Hostile work environment affecting caregivers: Subjecting a female worker to severe or pervasive harassment because she is a mother with young children.

What about stereotypes or biases regarding caregiver responsibilities?

  • Assuming that male workers do not, or should not, have significant caregiving responsibilities;
  • Denying male workers’, but not female workers’, requests for leave related to caregiving responsibilities;
  • Assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work; and
  • Assuming that female workers’ caretaking responsibilities will interfere with their ability to succeed in a fast-paced environment.

Our team will continue to share the latest developments and provide insights on the spread of coronavirus and its impact across sectors.