New EEOC Guidance on Caregiver Discrimination
In May of this year, the EEOC issued enforcement guidance entitled “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” In recent years, there has been a significant increase in the number of “caregiver” discrimination cases. Caregiver discrimination, also known as “family responsibilities discrimination,” is a term used to describe claims asserted against employers based upon an employer’s assumption about family responsibilities. Although no law currently exists to prohibit discrimination against caregivers, differential treatment of employees with caregiving responsibilities may violate Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), as well as state discrimination laws.
Discrimination arises if an employer’s decision is not based upon the individual’s actual performance, but rather on stereotypes relating to the individual’s caregiving role. For example, an employer may assume that new parents will not be as reliable or as committed to their jobs after they have children; or an employer may believe that a mother should be at home with her children and thus, may offer fewer opportunities for advancement. Employee-caregivers are not immune from discipline for performance or policy violations; however, they should be subject to the same standards and treated in the same manner as employees without caregiving responsibilities.
The EEOC Guidance acknowledges that discrimination against working mothers is the most common form of caregiver discrimination. Caregiver responsibilities not only extend to children, but also to elderly or disabled parents, spouses, in-laws and grandchildren. According to the Guidance, employers are prohibited from treating female caregivers differently. Often times, such differential treatment is based on stereotypes. Some examples would include: overlooking a female with young children for a promotion based on the assumption that she will not want to work long hours or that she will not be able to travel; assuming that a female applicant will be less dependable than a male due to their potential future role as a working mother; transferring a female worker to a position with fewer responsibilities and fewer opportunities for advancement in order to give her more time to spend with her new child (when the employee does not request the change).
Caregiver discrimination also can impact male workers. For example, employers may not deny or discourage a male employee’s request for childcare leave, if similar requests have been granted for female workers. Similarly, employers cannot deny a male employee accommodations to deal with childcare issues if it would grant such accommodations to a female worker. Comments in the workplace can also create problems. For example, if a supervisor refers to a male employee as “Mr. Mom,” such evidence could be used to support a discrimination or harassment claim under Title VII.
The EEOC Guidance also advises employers not to make pregnancy-related inquiries or treat pregnant workers less favorably. For example, an employer who provides up to eight (8) weeks of paid leave for temporary medical conditions should provide the same eight (8) weeks of paid leave for pregnancy-related medical conditions.
Relationships with Disabled Individuals
The ADA prohibits discrimination against an employee because of his or her relationship with a disabled individual. An employer’s refusal to hire an applicant who is caring for a parent or a disabled child, based on the assumption that caregiving responsibilities will cause the applicant to arrive late or use frequent leave, is a violation of the ADA.
Racial and Ethnic Issues
The EEOC Guidance also addresses an employer’s treatment of caregivers based on the employee’s race or ethnicity. For example, an employer who denies flexible compensatory time to an African-American woman to care for her children but grants the same privilege to white employees violates Title VII’s ban on race discrimination.
The EEOC Guidance notes that not all employment decisions that adversely affect caregivers are unlawful. The guidelines are designed to encourage employers to adopt best practices to make it easier for all workers, whether male or female, to balance work and personal responsibilities. Employment action should always be based on legitimate business concerns and employee performance rather than stereotypes or biases.
Employers can reduce the risk of caregiver discrimination by training supervisors to avoid making assumptions based on an individual’s perceived caregiving responsibilities. Many supervisors do not realize that comments such as “I don’t see how you can balance your job and your responsibilities as a mother” or “you should not plan on having a baby if you want to get ahead here” are illegal. Supervisors should also be trained regarding the FMLA and state laws which provide leave to employees. Family leave should not be denied to men nor should men be discouraged from taking such leave by questioning their commitment to work or warning them that taking leave may interfere with their advancement opportunities. Supervisors must also be trained to properly assess job performance based on objective factors. Evaluations should not address or refer to family issues even if they impact the individual’s performance.