Who’s the Caregiver(s)?

Last month, the EEOC added some pretty straightforward language to its verbosely-titled guide, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The topic? Caregiving.

What does the EEOC want to tell you about caregiving in a pandemic? As it turns out, a lot. Let’s face it: there are people who in 2022 still think that moms take care of kids and dads work (they may also forget that plenty of families have two moms, two dads, single dads, single moms, blended families, and multi-generational setups). I have met these people. They tend to also be very intent on getting their employees back in their office.

That’s not you.

For employers who want to keep employees happy (that is you) by respecting the unique challenges that parenting presents, especially in a pandemic (you again!), the EEOC’s updated guidance has some nice points.

We must reject not only the stereotypes that others have of us but also those that we have of ourselves.

Shirley Chisholm

Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics.

I like this point for two reasons: First, it reminds the employer that Title VII prohibits you from providing flexibilities for caregiving to women and not men. That’s “caregiving discrimination,” a form of sex discrimination based on tired gender stereotypes, and the EEOC wants you to be aware. Second, the guidance also reminds the employer that in March 2022 (when the caregiving FAQs were released), two years after the pandemic began, employers may continue to provide flexibility to their employers! Yes, this should be obvious, but some employers need a nudge in this department.

Employers may not reassign such projects to other employees based on assumptions that female caregivers cannot, should not, or would not want to work extra hours or be away from their families if a family member is infected with or exposed to COVID-19.

Ah, benevolent bias. Hello, old friend! It’s been too long since I read about you. Back in 2007, the EEOC made mention of BB. In 2016, fellow Chicago attorneys Andrea S. Kramer and Alton B. Harris wrote a terrific book on the subject that I tore through (nodding and frowning) one weekend called Breaking through Bias. In 2022, it’s refreshing to read the agency acknowledging BB in the context of COVID-19. It has not gone away; in fact, it’s probably more prevalent than ever because, hey, we’re in a caretaking crisis and guess who is supposed to fix it?

If you haven’t heard of BB, here are a couple of examples of how it plays out:

EXH. 1

Rose’s Manager:

Rose shouldn’t go on the work trip – her kid has COVID and she has a lot on her plate.

Rose upon getting email cancelling trip:

What?

EXH. 2

Brianna’s Manager:

Poor Brianna. She seemed worried when I asked her how her mom is recovering from COVID. Can you take her Saturday shift so she can stay home with her family?

Brianna upon getting text cancelling Saturday’s shift:

What?

So, my dialogue might not win a Pulitzer, but I am trying to be authentic here. Most women have experienced BB sometime in our careers. It may come from a well-meaning place.

But, to put a finer point on it, it may come from an ignorant, well-meaning place. A place where women drop everything for their families, including their income!, to be at home because that’s what women do! A place where women want to miss out on the career-making trip, or the most lucrative shift at the restaurant, but they are afraid to ask. A place where their employer can save them from their timidity, providing them the very thing they want – less work, more caretaking. A place where women can afford that scenario.

This is a dangerous bias that men do not have to endure. And after the first months of the pandemic saw women lose 12.2 million jobs, reversing a decade of job growth, it’s a bias that is particularly damaging today. Women want to, have to, need to work. Women are also, by definition, adults. If they need to step back, they’ll tell you.

So, back to the EEOC. The updated guidance is not just here to assist us in navigating the world. It’s also here to reflect what’s happening in it. FAQs don’t appear on a whim. The EEOC is responding to the issues of the day, and caregiving discrimination is a big one. Employers should ensure they develop policies and train their managers on how to spot and stop benevolent bias during the pandemic and beyond.

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