Handle with care: EEOC puts employers on notice about caregiver mistreatment

Discrimination against caregivers appears to be a top enforcement priority for the Equal Employment Opportunity Commission, labor lawyer says
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· 5 min read

As we enter the third year of a pandemic that has disproportionately harmed working women, in particular mothers, the Equal Employment Opportunity Commission (EEOC) signaled it is refocusing its sights (and potentially its enforcement powers) on caregivers by releasing an updated document on “pandemic-related caregiver discrimination under the law.”

Catch up. The new EEOC guidance issued this month did not establish caregivers (such as parents and those who assist an elderly or disabled family member) as a protected class under federal anti-discrimination laws, but it did remind employers that discrimination against such employees or job seekers might violate the law. The guidance reaffirms that employer actions toward caregivers could catch the EEOC’s eye if they’re based on a protected trait, association with a protected trait, or the intersection of two or more protected traits—for example, “discrimination against Black female caregivers based on racial and gender stereotypes.”

The full guidance includes a technical assistance document, an FAQ, and a document outlining employment best practices to clarify how employers should address employees and job seekers with caregiving responsibilities.

Jim Paul, a labor and employment attorney at Ogletree Deakins, told HR Brew there’s “nothing new here, legally.” In Paul’s opinion, the guidance was meant to point employers toward the agency’s priorities and educate employees about their options for pursuing complaints.

“I think [the guidance is] signaling an enforcement agenda item—a top-five enforcement agenda item—but more it’s providing useful guidance, generally, to employers and employees, because, guess what? Every employee has access [to the internet] and Google and has that same information… employees are well-armed and know as much as the attorneys generally, if they’re savvy enough to read any of this.”

The EEOC guidance, which the agency did not indicate was motivated by any particular crop of cases, was released on the heels of a slew of caregiving-related employment-discrimination and leave cases.

According to Fisher Phillip’s Covid-19 Employment Litigation tracker, between March 1, 2020 and March 1, 2022, 1,228 employment-discrimination cases and 1,106 cases related to remote work or leave were filed nationwide.

Some of the more high-profile recent workplace-discrimination cases have been focused on pregnancy discrimination. In January, SoulCycle settled a lawsuit brought by a former executives who alleged that the company had used the pandemic as “an excuse for pregnancy discrimination”; in February, Google reached an undisclosed settlement with a former employee who claimed the company discriminated against her after she became pregnant; and, this month, a federal jury awarded a UT Austin professor $3 million in a pregnancy and sex discrimination suit filed against the university. Also this month, Saint Clare’s Health in New Jersey paid $77,550 to settle a pregnancy-related disability discrimination lawsuit filed by the EEOC.

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Clearing things up. Lisa Schnall, a senior attorney advisor at the EEOC, told HR Brew that “[Discrimination] comes up in a lot of decisions that may be based on stereotypes. The stereotypes are frankly opposite for men and for women because women are perceived as the caregivers, and employers might assume that a female employee with caregiving responsibilities will or should focus on those responsibilities,” Schnall said. She pointed HR Brew to examples of such problematic policies in the EEOC’s employer best practices document.

Schnall acknowledged that employers may have “the best of intentions” but that if they make decisions based on an “employee’s race, or related to an employee’s gender or some other category that’s protected under our laws, those decisions might be illegal.” She emphasized the importance of training managers and personnel in decision-making roles about their legal obligations not to discriminate.

What to watch: Paul said that leave issues, including pregnancy leave, are “absolutely the most complex, and confusing, and pressing issue for employers and definitely an enforcement trend,” particularly in the age of remote and flexible work. He told HR Brew that “not a day goes by” in which employers don’t have questions about how to deal with something “under the umbrella” of leave.

Paul views the new guidance as sign that caregiver discrimination is “an important item on the EEOC’s agenda and the Biden administration’s.”

We don’t have a crystal ball, and, as Paul says, the matter is complex, but the EEOC must accept charges alleging workplace discrimination, and employees seem willing to file them, so there could be more pregnancy-discrimination and caregiver-centered cases coming.—SV

Do you work in HR or have information about your HR department we should know? Email [email protected] or DM @SusannaVogel1 on Twitter. For completely confidential conversations, ask Susanna for her number on Signal.

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