The Equal Employment Opportunity Commission (EEOC) has recently issued new guidance clarifying how discrimination against caregivers may violate federal employment laws. This updated guidance addresses how unlawful discrimination can arise and potentially result in EEOC enforcement even though caregivers are not yet a protected class under federal law. However, as of yet, there are no official changes in law or regulation.

The EEOC’s guidance comes as the pandemic enters its third year and caregivers’ responsibilities continue to be greater than before the onset of COVID-19. In addition, as childcare and elder care facilities struggle to meet staffing needs, many schools operate at least in part virtually.

The guidance includes a technical document to help employers avoid unlawful discrimination. In addition, it warns how actions taken based on one or more protected traits toward caregivers can still violate anti-discrimination laws. Protected traits include, but are not limited to, the caregiver’s gender, race, sexual orientation, religion, age, or disability.

For example, denying a female caregiver a promotion under the assumption that she would be too focused on her children violates federal anti-discrimination laws. Similarly, the EEOC provides another example of an employer violating anti-discrimination laws. A potential caregiver was denied a work opportunity due to having disabilities. The reasoning was that the organization assumed hiring this person would raise healthcare costs.

In many cases, caregiving responsibilities intersect with protected traits, and lawsuits claiming unlawful caregiver discrimination have risen considerably in recent years. These have included several high-profile cases involving pregnancy discrimination.

In some cases, employers may have the best intentions. However, the EEOC’s senior attorney advisor, Lisa Schnall, reminds employers that decisions based on protected characteristics may still be illegal. As such, it is crucial to sufficiently train managers and other personnel in the requirements of federal anti-discrimination laws.

Most notably, such lawsuits and general issues are related to the caregivers’ leave use. In many cases, these requirements can be highly complex and lead to a considerable degree of litigation. Such conditions include pregnancy leave, particularly for remote or hybrid work.

Though the updated guidance comes with no changes in law or regulation, it signals where the EEOC’s attention currently lies. With this guidance clarifying best practices for avoiding unlawful discrimination, employers are advised to review their existing policies regarding caregivers.

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