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EEOC Adds Guidance on Caregivers and Non-Binary Options

In March 2022, the Equal Employment Opportunity Commission offered two noteworthy pieces of information to the public. First, it issued clarifying guidance entitled “The Covid-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law” along with information for employees and job seekers with caregiving responsibilities.

Noting that employees are still facing challenges with juggling work and caregiving as the pandemic evolves, the commission states that discrimination against these employees may violate Title VII, the Americans with Disabilities Act, or other employment laws. Discriminating against caregivers could violate discrimination laws when it is based on sex, race, color, religion, national origin, age, disability, or genetic information. The guidance reiterates that employment discrimination laws do not protect employees based solely on their caregiver status. Rights may exist for these responsibilities under the Family and Medical Leave Act or similar state laws. Employers providing more favorable flexibility to employees with caregiving duties do not violate discrimination laws provided the differential treatment is not due to any of the protected categories identified above.

To be more inclusive of the LGBTQI+ community, the EEOC will give individuals filing charges of discrimination an additional gender option. Individuals will now have the option to select a nonbinary “X” as a voluntary self-identification. It will be added to the voluntary demographic questions relating to gender when filing charges. The discrimination form will also be modified to include “Mx” in the list of prefix options. The Vice-Chair expressed that these changes will “ensure that the identities of all those who come to [the] agency for assistance are acknowledged and embraced.”