OFCCP Week in Review: March 2022 #3 | Direct Employers Association
Monday, March 14, 2022: Manager Alert: EEOC Slips Into Unauthorized New “Law” on So-called “Intersectional Discrimination” Under Cover of New Guardian Discrimination Directive
The Equal Employment Opportunity Commission (EEOC) has released new “Technical Assistance Guides” titled “The COVID-19 pandemic and caregiver discrimination under federal employment discrimination laws.” While the guidelines merely purport to relay and flag “established” policy positions for discussion (via 18 Q&As) when discrimination against applicants and employees relates to care responsibilities during the COVID-19 pandemic may violate the federal laws listed below, we can find no record of the 5-member Commission voting on this policy position:
- Title VII of the Civil Rights Act of 1964 (Title VII),
- Titles I and V of the Americans with Disabilities Act of 1990 (ADA),
- Sections 501 and 505 of the Rehabilitation Act 1973 (Rehabilitation Act), or
- other laws enforced by the EEOC.
Whether or not this is duly endorsed Commission policy, there is nothing new here other than a side-adventure (discussed below) implicitly acknowledging, without comment, the discrimination so-called “intersectional” (in which two protected statuses are supposed to be necessary to combine to create the protected class: i.e. “African-American women”, even if there is no discrimination against against “African Americans” or “women” or airplane mechanics or secretaries and that would be equally true and applicable. In other words, there is nothing here that is unique to the classification of the employed as a ‘caregiver’, although this is a good list of intentionally discriminatory actions not to take upon hiring (other than the off-topic discussion of ‘intersectional discrimination’.
It is important to note that a “caregiver” is not a protected category. However, a caregiver may be a member of a protected class (because they are pregnant, or male, etc.), and discrimination based on a protected class may be illegal. It’s also important to understand that few courts have found claims of “intersectional” discrimination to be justiciable under Title VII, which only makes actions “based on” “race,” “sex,” “gender”, etc. and not based on “race and gender”.
It is also important to understand that this “caregiver” orientation does not apply to the vast majority of caregivers in the United States. Title VII does not extend to companies with less than fifteen employees and only to companies which also affect “interstate commerce”. (Most sitters in the United States still work independently or through small “Mom and Pop” businesses of 3 or 4 employees and not through commercial agencies. However, this working architecture is in changing across the United States as home care for affluent and aging “Baby Boomers” is booming). Similarly, ADA jurisdiction begins with the 15and employee (and the business must affect interstate commerce). The Age Discrimination in Employment Act extends to businesses with twenty or more employees and is intended to affect interstate commerce. (But see discussion of state law, below.)
The EEOC guidance begins with this explanation:
Q#1. When does discrimination against applicants or employees with caregiving responsibilities violate federal employment discrimination laws?
- Discrimination against caregivers violates federal employment discrimination laws when based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity). ), race, color, religion, national origin, age (40 or older), disability, or genetic information (such as family medical history).
- Discrimination of caregivers is also illegal if it is based on an applicant’s or employee’s association with a person with a disability, as defined in the ADA, or on race, ethnicity, or any other protected characteristic. of the person receiving care.
- Finally, discrimination of caregivers violates these laws if it is based on intersections between these characteristics (for example, discrimination against black caregivers on the basis of racial and gender stereotypes, or discrimination against Christian caregivers on the basis of religious and gender stereotypes).
The additional questions and answers cover examples of unlawful discrimination of caregivers based on gender, LGBTQI+, pregnancy, disability, national origin, and an intersection of protected classes. Other areas covered include harassment, retaliation, accommodations and job performance.
What about national or local laws?
This is a crucial factor that employers should consider. For example:
Q#5. Are employees entitled under federal employment discrimination laws to reasonable accommodations such as telecommuting, flexible hours, reduced travel, or overtime because they are caregivers?
- In general, no. The laws enforced by the EEOC do not entitle employees to accommodations to manage caregiving duties. However, employees unable to perform their duties due to pregnancy, childbirth or related medical conditions should be treated the same as other employees temporarily unable to perform their duties.
- In addition, employees with caring responsibilities may have rights under other laws, such as the right to leave for care covered under the [federal] Family and Medical Leave Act [“FMLA”] as the U.S. Department of Labor enforces, or under similar provisions state or local laws. Employers may also choose to provide such accommodations to employees at their discretion, as long as they do so in a non-discriminatory manner.
To note: The federal FMLA applies only to employers with fifty or more employees within a seventy-five mile radius and to employees who have worked at least 1,250 hours in the preceding 12 months.
To note: In some states, such as California, you can become an “employer” covered by state anti-discrimination laws when you hire a single caretaker (not employed in a business with 15 or more employees) to look after the one of your parents at home. since California law asserts jurisdiction over persons or businesses that hire only one “employee” (which often leads to the independent contractor discussion in California).