In newly-issued guidance, the EEOC outlined how a company’s hiring and other policies could unlawfully discriminate against employees or job applicants with caregiving responsibilities during a pandemic.
The Commission emphasized that the COVID-19 pandemic has increased instances of “caregiver bias” by which employers unlawfully penalize employees or screen out job applicants based on caregiving responsibilities that are perceived as interfering with the ability to work.
According to the EEOC, examples of “caregiver discrimination” include employers refusing to hire female applicants on the assumption that having to care for young children who cannot attend school in person will prevent the applicant from performing their job duties adequately. Conversely, the new guidance emphasized that employers are not required to excuse poor performance resulting from pandemic-related caregiving responsibilities. The guidance includes eighteen Q&As for employers to review as well as best practices for workers with caregiving responsibilities.
Several studies have shown that women have borne the brunt of expanded caregiving duties due to COVID-19 and have been forced to leave their jobs or take reduced hours as a result. The EEOC’s guidance is a direct response to this “new normal” and is aimed at combating what it sees as a rise in “caregiver bias” – essentially a form of gender discrimination – as a result.
Meanwhile, the DOL issued new guidance on prohibited retaliation under the FLSA, FMLA, and visa programs. The guidance provides specific examples of what constitutes unlawful retaliation under each of these laws, and specifically highlights instances of unlawful retaliation related to the use of attendance policies that penalize employees even when using FMLA-protected leave. The guidance does not offer any novel interpretations of retaliation law but is the latest example of the Biden administration’s tri-agency (DOL, NLRB, EEOC) emphasis on combating workplace retaliation.