EEOC issues guidance on employee pandemic-related discrimination

The U.S. Equal Employment Opportunity Commission Monday issued a technical assistance document warning employers against discriminating against employees who have pandemic-related caregiving responsibilities, but which also details instances where companies are not necessarily obligated to accommodate workers.

“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 generic information (such as family medical history),” it says.

The guidance says an example would be if an employer refused to assign female caregivers demanding or high-profile projects that increase employees’ advancement potential but require overtime or travel.

However, under federal employment discrimination laws enforced by the EEOC, employees do not have a right to reasonable accommodations, such as telework, flexible schedules or reduced travel, the guidance says.

Employees, though, with caregiving responsibilities may have rights under other laws, including the Family and Medical Leave Act, which is enforced by the U.S. Department of Labor, the guidance says.

In addition, the Age Discrimination in Employment Act does not give older employees a right to reasonable accommodation for caregiving or any other purpose, although, at their discretion, they can grant older workers requests for leave and other accommodations to enable them to perform pandemic-related caregiving duties, the guidance says.

Companies are also not required to excuse poor performance resulting from employees’ caregiving duties, according to the guidance.