While federal equal employment laws do not explicitly cover individuals solely based on their caregiving responsibilities, employers who aren’t mindful could become enmeshed in “caregiver discrimination,” JD Supra reports. That’s because the EEOC recently released guidance for employers to stop unlawful discrimination against workers with caregiver responsibilities tied to the pandemic.

“In practice, employers are most likely to engage in prohibited caregiver discrimination when they act on assumptions or stereotypes or apply policies unevenly based on protected traits,” Ashley Parr writes for JD Supra. Parr is a member with the Nexsen Pruet law firm in South Carolina.

An employer could run afoul by refusing to assign challenging projects to a female employee or reassign her away from such projects that could help advance her career. If the employer’s decision is based on gender stereotypes that the woman, as a caretaker, may have a tougher time with the project or would not want to take on more work if a family member were to come down with COVID-19, then the employer may be engaging in caregiver discrimination.

Caregiver discrimination could apply in cases where a male worker whose request for a more flexible schedule to care for a relative with COVID-19 is rejected when a similar ask from a woman employee is granted. “Declining to hire an applicant because his wife has a disability that puts the applicant’s wife at higher risk of severe illness from COVID-19 because the employer fears that its health insurance costs will increase if the wife is added to its healthcare plan” also could be seen as caregiver discrimination, Parr writes.

Employers also are not allowed to discriminate against LGBTQI+ employees with caregiving responsibilities based on sexual orientation or gender identity and against employees with such responsibilities based on race or national origin, the EEOC notes in its guidance.

“For example, employers may not subject Asian employees with caregiving responsibilities to more scrutiny by requiring additional proof of Asian caregivers’ COVID-19 vaccination status or additional proof of their family’s COVID-19 vaccination by an independent third party (someone other than the employer or the employer’s agent), because COVID-19 was first identified in an Asian country,” according to the EEOC guidance.

Employers also can run into trouble should they treat “caregivers differently based on their association with an individual with a disability or on a protected characteristic of the individual for whom care is provided…,” The National Law Review reports.

It is OK for employers to have a policy on allowing for flexible work arrangements that is conditioned on a caregiver’s performance, but “employers should ensure performance standards are applied consistently without regard to protected characteristics,” The National Law Review reports.