Experts have begun to warn of a coming “Age Wave” as global life expectancies rise. The World Health Report of 1998 marked the global life expectancy at birth at 66 years and projected it to rise to 73 years by 2025. Furthermore, the WHO expects thousands born at the end of the 20th century to live through the 21st century and into the start of the 22nd century. Even today, the Pew Research Center reports that, with the aging of the Baby Boomers, about 10,000 people have been turning 65 each day since 2011, and will continue to do so at this rate. When these statistics are coupled with a declining birth rate in many developed countries, an inverted population pyramid is on the horizon.
These changing demographics will have a significant effect on the workforce in coming decades. More and more, workers will find themselves as a “sandwich generation” – simultaneously caring for young children and aging parents. And with declining birthrates, the work of caring for those aging parents will increasingly fall upon just one or two children.
The COVID-19 pandemic provided a preview of what is to come. It significantly impacted employees’ work and personal obligations, creating competing job and caregiving demands both for children and parents. Abrupt changes in work locations required millions of Americans with caregiving responsibilities for children, spouses, partners, older relatives, and individuals with disabilities to adjust to vastly changed circumstances.
In response, the EEOC recently issued technical assistance to assist employers navigate these new realities under federal employment discrimination laws. The EEOC’s technical assistance reminds us that “[d]iscrimination against a person with caregiving responsibilities may be unlawful under federal employment discrimination laws enforced by the” EEOC. Caregiver discrimination violates federal employment discrimination laws when it is 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). But it is also unlawful if it is based on an applicant’s or employee’s association with an individual with a disability, within the meaning of the ADA, or on the race, ethnicity, or other protected characteristic of the individual for whom care is provided. Finally, it violates these laws if it is based on interactions among these characteristics.
To be clear, federal employment discrimination laws do not prohibit employment discrimination based solely on caregiver status. However, some state or local nondiscrimination laws may provide broader protections for workers with caregiving responsibilities. Employees with caregiving responsibilities also may have rights under other laws, such as the Family and Medical Leave Act enforced by the Department of Labor. Currently, the EEOC’s recent technical assistance only addresses rights under the federal employment discrimination laws enforced by the EEOC.
Workers and employees alike would be wise to review the EEOC’s technical assistance for a very helpful discussion of the many different situations in which caregiver discrimination might arise.