“Two out of three caregivers are women, so when demand for that care goes up, they will be ones to leave the workforce” said Luke Pardue, economist at Gusto. The Institute on Aging added, about 75% of all caregivers are female and may spend 50% more time providing care than males. We might assume pressures created by the pandemic are causing women to experience certain challenges more than men. Women are quitting their jobs at a faster pace than men.

Along with caregiving responsibilities comes worry that performance is being judged because of caregiving responsibilities, especially if feeling the need to be available to work at all hours. Many employers are trying to be flexible to retain their employees. Remember the “Don’t assume” lesson. Discrimination, disparate impact, and hostile work environment may all be created when the employer assumes it knows best for the caregiver.

Some state and local nondiscrimination laws may prohibit discrimination based solely on caregiving responsibilities. Employees who are entitled to Family Medical Leave Act rights may be entitled to caregiver rights. No other federal law prohibits employment discrimination based solely on caregiver responsibilities. However, caregiver discrimination violates federal discrimination laws when it intersects with a protected class defined by the EEOC (Equal Employment Opportunity Commission). It is unlawful to base employment decisions on applicant’s or employee’s sex, race, age, color, religion, national origin, age, genetic information, and disability. Caregiver discrimination is also unlawful if it is based on the association with a person with a disability under the Americans with Disabilities Act.

Don’t assume. Employers cannot treat women differently because they assume the female employee has caregiving duties. Employers cannot assume employees with caregiving duties want to telecommute, require a modified schedule, or wouldn’t want a promotion since it includes travel. Employers cannot apply different standards or require different processes based on sex or any other protected class. Treating caregivers differently may result in disparate impact.

Don’t assume employees in a protected class are entitled to work from home any more than anyone else. They are entitled to work from home as much as anyone else in a similar position. Don’t assume performance can be substandard especially attendance and punctuality.  Treat employees equitably when it comes to complying with performance standards.

Respect people’s circumstances. A hostile work environment can be created by allowing harassing conduct related to caregiving responsibilities. Disparaging a female for focusing on her career instead of caregiving or accusing a female employee of being pre-occupied and distracted by caregiving obligations are both disrespectful and potentially unlawful.  

COVID-19 is still alive and impacting all of us including our businesses. Employees and employees’ family members who are immunocompromised, have children too young to be vaccinated, or other vulnerable individuals may be reluctant to return to their workplace. Whether onsite or not, employers should determine the circumstances when flexibility in work schedules and other adjustments would be warranted. It’s an opportunity to be kind. Just be careful not to assume.