The U.S. Equal Employment Opportunity Commission Just Issued New Information About Caregivers in the Workplace and Federal Discrimination Law: What It Means for New Yorkers

Earlier this month, the U.S. Equal Employment Opportunity Commission released a new “technical assistance document” regarding employment discrimination and harassment that targets people with caregiver responsibilities. This new publication represents the federal government’s recognition of how employers can possibly violate federal laws when dealing with these workers. Here in New York, the state and the city have strong protections safeguarding caregivers in the workforce. If you think you’ve endured discrimination or harassment because of your caregiver responsibilities, then it’s worth your while to contact a knowledgeable New York employment discrimination lawyer and find out what you can do.

The new document from the EEOC also recognizes that the numerous unique challenges workers with caregiver responsibilities face has only increased in this age of COVID-19.

An employee can be the victim of illegal discrimination in many ways when it comes to caregiver status and COVID-19. One hypothetical example the EEOC used was an employer that made remote work and modified schedules an option for its female employees but not its male employees during periods when schools were closed to in-person learning. This assumption about who bore the majority of caregiver responsibilities for school-aged children was not only sexist, it also represented a potential Title VII violation by treating women employees better than men employees.

Caregiver Discrimination Can Be Based on Things Other Than Gender

Caregiver discrimination at the federal level can occur in various different ways. It’s not always a matter of sex discrimination. Take, for example, a white supervisor who, in rejecting his Black female subordinate’s request for a remote work assignment because her kids’ school was closed due to COVID-19, opined about the supposed tendency of Black women to have many out-of-wedlock children by multiple different fathers. Those comments would be (in addition to grotesquely racist) a potential instance of caregiver discrimination rooted in race discrimination and a violation of Title VII.

Caregiver discrimination that violates federal law may also be rooted not in who you are, but in who you’re caring for. This includes caring for a person with disabilities, which can implicate the Americans With Disabilities Act.

It’s also important to keep in mind that the symptoms of COVID-19 may constitute a recognizable disability under the ADA. As the EEOC pointed out, if an employee was denied “unpaid leave to care for a parent with long COVID,” that could be an instance of disability discrimination if the same employer approved “other employees’ requests for unpaid leave to handle other personal responsibilities.”

Caregiver discrimination can also give rise to a case of Title VII sexual orientation discrimination. Say, for example, an employer routinely granted (without requiring special documentation) extra leave to fathers who needed to care for their children at home, but demanded that Jane Doe, a lesbian employee, provide written proof of her relationship to the child in question (or else to the child’s biological parent) before granting her extra leave. That would be something where the process was more burdensome (or less burdensome) based on the employee’s sexual orientation and, therefore, a possible Title VII violation.

City and State Protections Are Available in New York

Unlike federal law, the New York City Human Rights Law expressly recognizes caregivers as their own protected class for purposes of employment discrimination and harassment law. Under the NYCHRL, protected workers include parents with children under the age of 18 and for whom that parent provides “direct and ongoing care.” (“Children” in this context also includes adopted or foster children.) Also protected are people who “provide direct and ongoing care to a parent, sibling, spouse, child (of any age), grandparent, or grandchild with a disability or a person with a disability who lives with them,” if “that person relies on them for medical care or to meet their needs of daily living.”

Under the New York State Human Rights Law, caregiver discrimination is part of a larger category called “family status discrimination.” This aspect of the NYSHRL, prohibits making adverse employment decisions for a variety of reasons, including because an applicant/employee is expecting a child, is a single parent, is a father with primary physical custody of his kids, has a grandchild at home, or is a foster parent (among other scenarios.) It also prohibits making adverse employment decisions “based on the belief that mothers should stay home with their children” or “any other stereotyped belief or opinion about parents or guardians of children under the age of 18.”

Federal authorities are continuing to clarify the legal protections under federal law for workers with caregiver responsibilities. Fortunately, caregivers in New York workplaces already have powerful tools in the NYCHRL and NYSHRL. Balancing professional responsibilities at work with caregiver obligations at home should be a feather in your cap, not a basis for punishment. If you’ve been fired, denied employment, denied a promotion, or otherwise harmed because you’re a caregiver, get in touch with the experienced New York caregiver discrimination attorneys at Phillips & Associates. We’ve successfully represented lots of workers like you, and we’re here to help you out, too. To find out more, contact us online or at (212) 248-7431 to set up a free and confidential consultation today.

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