Women have long fought against sex-based stereotypes in the workplace, including what is often called the “caregiver bias.” Caregiver bias is the assumption that, because women are the primary caregivers of children and aging or infirm family members, they will not be able to effectively work without being distracted by their caretaking responsibilities.
During the COVID-19 pandemic, schools have been closed and older and ailing individuals are considered high risk. Because women spend three times as many hours as men providing unpaid care and performing domestic work, this combination threatens the strides that women have made in the workplace and could create setbacks to career advancement, leadership roles and pay equity. Indeed, a recent United Nations study, The Impact of COVID-19 on Women, warned that the pandemic could reverse decades of progress made toward gender equality in the workplace.
Balancing the need for a productive workforce, robust health and safety practices during a pandemic, and equal and fair treatment of employees is no easy task. The complex, and sometimes competing, issues created by COVID-19 are extremely difficult for employers to navigate. Some employees have serious concerns about returning to the office, fearing for their individual safety and the safety of family members who are at higher risk from COVID-19 exposure due to age or a medical condition. Other employees have concerns about not returning to the office, fearing they will be left out of important decision-making or disregarded for promotional opportunities. Some may feel both. Employers face difficult decisions. Even a benevolent employer who honestly believes that an employment-related decision is in an employee’s best interest can easily run afoul of legal liability.
At all times—but particularly during the COVID-19 pandemic—employers should be wary of making employment decisions based on caregiver bias, including but not limited to telework, furlough, recall or permanent termination decisions that might disproportionately and adversely affect female workers. Along with balancing the needs to maintain both productivity and safety of their workforce, employers must ensure that their actions abide by all relevant anti-discrimination laws, as workplace challenges amid COVID-19 will surely expose unwitting employers to employment-related claims, including those related to caregiver bias.
Potential Caregiver Bias-Related Claims
Employers necessarily strive to retain the most productive employees. Unjustified assumptions based on caregiver bias, however, could lead employers to furlough or lay off female employees at a higher rate than their male counterparts. Particularly in the COVID-19 environment, the caregiver bias could lead to an increase in sex-based discrimination claims on behalf of women with families.
Litigation regarding caregiver bias during the pandemic has already started. In California state court, a female plaintiff claims that her employer discriminated against her and discharged her because she was trying to juggle caring for her two young children while working from home during the pandemic. The plaintiff alleges her employer discriminated against her because of her sex, harassed her for having children and treated male employees with children more favorably.
Employers do not just face this risk with female employees, as caregiver bias can affect both women and men. Under Title VII of the Civil Rights Act, employers cannot treat female employees more favorably than male employees because of a sex-based assumption about who may have caretaking responsibilities for children. Thus, in June 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance reminding employers that provide options like telework or modified schedules to employees with children due to school closures or distance learning during the pandemic that they should not treat employees differently based on sex or other legally-protected characteristics.
The Families First Coronavirus Response Act (FFCRA), the only federal law that gives both male and female caregivers job-protected leave related to COVID-19, is a formal acknowledgement by Congress that childcare is essential to many American workers and, without it, many would become unemployed. For caregivers who began taking leave on a full-time basis on the law’s April 1 effective date, the 12 weeks of leave available under the FFCRA expired on June 24.
While the law’s protections may be temporary and specific to the pandemic, employers should be aware that additional federal and/or state legislation will likely extend job protection for caregivers. Employees are also protected from retaliation for taking leave under the FFCRA. Thus, employers may face claims in the event that employees return from leave and experience an adverse employment action such as demotion, pay reduction or termination.
Indeed, two recent lawsuits filed under the FFCRA raise potential caregiver-bias theories. In one case, the plaintiff is a single mother who claims she was discharged from her job in retaliation for requesting leave under the FFCRA. She alleges she raised concerns with several of her managers about childcare issues stemming from her son’s inability to attend school because of COVID-19 closures and claims that her employment was terminated shortly after she formally requested leave under the new law. In the other case, a male plaintiff alleges that his former employer violated the law by discharging him for requesting leave under the FFCRA to care for his elderly parents, who were both in poor health and at high risk for COVID-19. Similar cases are likely to follow.
High-Risk Employees
Employers should be equally cautious in their treatment of female employees who are pregnant. The CDC has issued guidance stating that pregnant women may be at higher risk if exposed to COVID-19. Employers may feel it is in a pregnant woman’s best interest to stay out of the workplace, which could lead some to require pregnant women to work from home. Other employers may include pregnant women in furloughs or layoffs based on a belief that they cannot work. Title VII clearly includes protections from discrimination based on pregnancy. Even if motivated by benevolent concern, an employer cannot single out employees on the basis of pregnancy for an adverse employment action. As employees may consider a directive from their employer to work from home to be an adverse employment action, employers should refrain from making assumptions about any pregnant employee’s preferences or capabilities or risk potential claims.
Additionally, pregnant women may seek accommodations for pregnancy-related conditions, and employers may be required to provide them. In 2015, the Supreme Court determined in Young v. United Parcel Service, Inc. that employers must provide pregnant women with the same accommodations they provide to other non-pregnant employees who are similarly unable to work due to temporary medical conditions.
Further, pregnancy-related medical conditions may constitute disabilities under the Americans with Disabilities Act (ADA), even though the pregnancy itself is not a disability under the ADA. If an employee requests an accommodation for a pregnancy-related medical condition, the employer must consider the reasonableness of their request and engage in the interactive dialogue under the usual ADA rules.
Current Protections for Caregivers
While federal workplace anti-discrimination laws do not specifically list “caregiver status” as a legally protected category, it is unwise to base any employment decision on an individual’s perceived status as a caregiver because doing so poses risk of claims for gender-based discrimination under a sex-based stereotyping theory. Additionally, there are some states that protect familial status, so employers should make sure to stay informed about their state’s employment laws on this issue.
As the Supreme Court determined in the landmark case Price Waterhouse v. Hopkins, Title VII prohibits employers from discriminating against an employee on the basis of sex stereotyping. In that case, the plaintiff sued her employer for allegedly denying her a promotion because she did not conform to social conventions and other expectations of what society expects of women.
This important precedent paved the way for the court’s June 2020 decision in the case Bostock v. Clayton County, Georgia, in which the court explained that an adverse employment action based on gender identity is a decision based in part “because of sex” and thus violates Title VII. The court in Bostock also reiterated that Title VII prohibits employers from discriminating against individuals who “fail to fulfill traditional sex stereotypes.” Given the Supreme Court’s repeated pronouncements, it logically follows that employers could be exposed for sex stereotyping discrimination claims as a result of employment decisions based on the stereotype that women either are or should be the caregivers of children or elderly family members who need supervision or assistance during the pandemic.
Similarly, the ADA prohibits employers from taking adverse employment action against an individual based on his or her association with a person with a disability. For example, an employer cannot refuse to return an employee to work because the employee has caregiving responsibilities for a family member whose disability has been exacerbated by COVID-19. In short, employment decisions should not be influenced by an employer’s perception that an employee will be distracted by caregiving responsibilities or unable to perform job duties due to potential or actual caregiving responsibilities.
What This Means for Employers
There are a few things employers can do to minimize the risk of employee claims based on caregiver bias:
- Do not make assumptions about caregivers. Do not assume employees will be unable to return to work and/or fully contribute if they have children or older family members. Employment-related decisions should be made only after an examination of the facts and circumstances of each individual case.
- Train employees. Make sure employees (especially supervisors) are familiar with and understand the company’s policies on equal employment opportunity and non-discrimination, including as related to caregivers, and are familiar with the process for requesting accommodations.
- Review and update protocols for requesting accommodation. Ensure that the process for requesting accommodations is confidential and legally compliant. If an employee requests an accommodation for their own disability, engage in an interactive dialogue to evaluate the reasonableness and ensure confidentiality. If an employee requests an accommodation based on pregnancy, consider how others with temporary conditions are treated. If an employee requests an accommodation based on caregiver status or a family member’s disability, accommodations may not be required by Title VII or the ADA. However, refusal to provide accommodations could lead to claims based on sex or associational disability. Consider forming a small but diverse and inclusive accommodation team to review requests for accommodations and ensure fairness and consistency. When setting precedent, seek input from men and women with children of all ages and differing familial responsibilities.
- Evaluate job descriptions. Review job descriptions to ensure they accurately reflect the requirements of the job, paying special attention to whether the job can be performed in whole or in part from outside the office.
- Consider flexibility in work schedules and location. When feasible, offering flexible work schedules and full or partial work-from-home options will create goodwill. As part of this flexibility, ensure that relevant policies, including telework and time-keeping policies, are up-to-date and followed. Decide whether flexible options should be expressly designated as temporary because “walking back” such options may be easier if they are specifically intended to deal with the temporary circumstances of a pandemic.
- Educate employees on complaint reporting and investigate complaints promptly. Ensure that employees understand how to raise workplace complaints, including concerns about discrimination. Promptly investigate allegations raised and take any remedial action needed to address the concern and prevent recurrence.
U.S. businesses spend significant resources defending legal claims brought by current and former employees. Depending on how long a case goes before being resolved, costs of defense, fee-shifting for prevailing plaintiffs, and concerns about reputational harm, potential liability for a single plaintiff’s claim can exceed seven figures. In the aggregate, the stakes are huge, and the emergence of caregiver bias claims threatens to swell that figure. Taking steps to minimize the risk of caregiver bias claims—and, more generally, employment practices liability—deserves the attention of boards and management teams both during the pandemic and beyond.