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New EEOC Guidance Highlights Potential COVID-19 Caregiver Discrimination Claims

On March 14, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a new technical assistance document (the “Guidance”) addressing the interplay between existing federal employment discrimination principles involving caregivers to situations specifically related to the COVID-19 pandemic, which has presented unique challenges for employees juggling competing job and caregiving demands. The Guidance supplements earlier EEOC enforcement guidance, fact sheets, and best practices documents for employers, all of which address caregiver discrimination under a wide variety of circumstances.

The Guidance, which takes the form of FAQs providing numerous examples of unlawful discrimination and harassment arising from caregiver obligations, explains that caregiver status is not itself a protected class under federal employment laws. However, employment decisions against employees who are caregivers may constitute unlawful discrimination when they are made based on the employee’s protected characteristics, such as sex (including pregnancy, sexual orientation, and gender identity), race, color, religion, national origin, age, or disability, or based on the employee’s association with an individual with a disability (within the meaning of the Americans with Disabilities Act (“ADA”)). The Guidance further confirms that caregiver discrimination violates federal law when it is based on intersections among several protected characteristics – e.g., discrimination against Black female caregivers based on racial and gender stereotypes.

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