EEOC issues new guidance on caregiver bias

With emphasis on the pandemic.

On Monday, the Equal Employment Opportunity Commission issued updated guidance on “caregiver discrimination” in the workplace. The guidance emphasizes pandemic-related issues, but it is not limited to that.

Of course, “caregiver status” is not a protected category under the federal anti-discrimination laws. However, it is possible that employers could violate federal laws by treating certain employees with caregiver responsibilities less favorably than other employees based on sex or other categories covered under federal law, or by stereotyping employees or applicants based on actual or perceived caregiver responsibilities.

Caregiver guidance was last issued by the EEOC in 2007, during the George W. Bush Administration. That old guidance is still in effect (with some updates after the Americans with Disabilities Act Amendments Act took effect in 2009). But the EEOC's latest guidance freshens it up a bit.


The new guidance covers a lot that employers should already know. For example, that it would be unlawful to deny opportunities to women based on the assumption that women are less likely than men to want to travel or work overtime because of family responsibilities.

You already knew that, right?

On the other hand, many women do make choices like this for themselves, and the EEOC specifically says that it would not violate the law for the employer to act based on the employee’s expressed preference.

It would also be unlawful for an employer to discriminate against men with caregiving responsibilities, on the stereotypical assumption that men are supposed to be the breadwinners while their wives are the caregivers.


In the context of COVID, it could be discriminatory or even harassing for an employer to criticize pregnant employees or employees with disabilities “for maintaining a physical distance from colleagues, changing their schedules, teleworking, or taking other actions to avoid being exposed to or infected with COVID-19.”

I bet you knew that.

The employer can’t treat applicants or employees less favorably based on the fact that they are providing care to a family member who has a disability. (Under the Americans with Disabilities Act, it's unlawful to discriminate based on association with a person with a disability.)

One important point that the new guidance makes clear: If an employer provides accommodations (including light duty) to some employees, it must provide accommodations to pregnant employees with similar limitations. We have been advising employers to do this for years, but we continue to find that not everyone is "getting the memo.”

The rest of the new guidance struck me as pretty obvious. But just so you know,

  • If, say, an employee has caregiver responsibility for a same-sex spouse, the employer can’t require more proof of the relationship than it would require from an employee in a traditional marriage.
  • An employer cannot treat caregiver employees differently based on their race or national origin.
  • An employer cannot treat caregiver employees differently based on the “intersectionality” of their sex/sexual orientation/gender identity, and their race or national origin. For example, it would be unlawful to deny advancement opportunities to caregivers who are Black women, even if women of other races and Black men get plenty of those opportunities.
  • Employees are not entitled to reasonable accommodation based on their age, but it would be unlawful to treat older workers with caregiving responsibilities less favorably than similarly-situated younger workers.
  • Employers shouldn’t allow harassment of employees based on their caregiving status or lack thereof, such as
    • Giving a hard time to female employees for focusing on their jobs rather than their family responsibilities.
    • Giving a hard time to female employees for being too focused on their family responsibilities.
    • Giving a hard time to male employees for taking on caregiver responsibilities.
    • “Asking intrustive questions or making offensive comments about gay or lesbian employees’ sexual orientation” in response to a request for caregiver leave.
    • Insulting Asian employees “because COVID-19 was first identified in an Asian country.”

And, of course, retaliation is illegal. Betcha knew that, too.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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