Federal equal employment opportunity laws such as Title VII and the Americans with Disabilities Act (ADA) do not directly address discrimination against caregivers - that is, persons with caregiving responsibilities for a child, elder, spouse, or disabled person. However, treating a caregiver differently than other employees because of the caregiver's sex, race, or national origin or because of the caregiver's association with a disabled person can constitute unlawful intentional discrimination under Title VII or the ADA. Recently, the Equal Employment Opportunity Commission (EEOC), which enforces Title VII and the ADA, issued a set of guidelines indicating how its investigators will analyze discrimination charges involving caregivers. These guidelines provide employers with helpful reminders of the subtle ways unlawful bias can infect the workplace.

Unlawful Gender Discrimination Against Caregivers Under Title VII

Gender discrimination negatively affects both men and women with caregiving responsibilities, and the new EEOC guidelines point out examples of how sex-based stereotypes about caregiving can unlawfully affect employment-related decisions. For example, women may be seen as being more committed to their families than their careers and suffer prejudice and lost career opportunities as a result. Similarly, some employers may stereotype men as being unfit to be caregivers and consequently deny male employees benefits routinely given to their female counterparts, such as leave to take care of a child or parent. The guidelines are clear that an employer applying either stereotype in making decisions adverse to an employee risks violating Title VII. Even though stereotypes regarding caregiving impact both men and women, the guidelines observe that such stereotypes are likely to fall harder on women because more women than men occupy caregiving roles.

The new guidelines note that an employer does not have to discriminate against all women in order to violate Title VII. For example, it is illegal to discriminate against working mothers or pregnant women even when the employer does not discriminate against childless female employees. An employer does not violate the law, however, if it treats both working mothers and fathers in a similarly unfavorable way as compared to workers without children. Likewise, even though it is illegal for an employer to make generalized sex-based assumptions about a female employee’s ability to perform her job after becoming pregnant or assuming caregiving responsibilities, it is within an employer’s rights to make employment decisions based on the employee’s actual performance. For example, if as a result of caregiving the employee performs tasks unsatisfactorily (e.g., missing work or arriving late as a result of childcare issues), the employer may take appropriate employment action respecting the employee to the same extent it would for any employee with similar performance issues.

Disparate Treatment Based on Race or National Origin

The EEOC guidelines warn that racial and ethnic prejudices may result in unlawful disparate treatment of women of color who have caregiving responsibilities. For example, African-American and Latina women who are denied leave or reassigned to less desirable positions because of their caregiving responsibilities while their White counterparts are not subjected to similar treatment may have claims for race or national origin discrimination.

Unlawful Caregiver Stereotyping Under the ADA

With respect to caregivers, the ADA provides a more direct protection against discrimination than Title VII. In addition to prohibiting discrimination because a worker has a disability, the ADA prohibits discrimination against a worker, whether disabled or not, because of the worker’s association with a disabled person, such as a worker’s relationship to a disabled spouse, parent, or child. The new guidelines state that an employer should not treat an employee less favorably based on stereotypes about the burden that caring for a disabled person places on an employee and about the employee’s ability to perform his or her job satisfactorily despite that burden. For example, it would probably be unlawful to pass over a more qualified candidate who has a disabled child in favor of a less qualified candidate based on the stereotypical assumption that the more qualified candidate would be more likely to miss work as a result of caring for his or her disabled child.

Retaliation

Title VII and the ADA prohibit retaliation against workers who complain about perceived unlawful discrimination or assist in discrimination investigations or proceedings. The new guidelines explain how this protection may apply to caregivers. For example, if an employee with caregiving responsibilities filed or assisted in an EEOC charge, federal law would prohibit the employer from taking an adverse employment action in retaliation for such conduct. The guidelines also take the position that imposing a schedule change intended to deter a working mother or other caregiver from engaging in protected activity would violate federal antidiscrimination laws.

Practical Implications

Although Title VII and the ADA do not forbid discrimination against caregivers per se, employers should still be wary of situations where unlawful bias relating to sex, race, national origin, or disability results in disparate treatment of caregivers because of a protected factor. The new guidelines encourage employers to focus on the performance and value of the individual employee with caregiving responsibilities. Employer actions should not be based on stereotypes or speculation about an employee’s ability to perform his or her regular job tasks in light of the employee’s caregiving responsibilities. Employers should also keep in mind that laws other than Title VII and the ADA may come into play with respect to caregivers. For example, the Family and Medical Leave Act and similar state laws grant eligible employees a right to take a job-protected leave of absence to care for a spouse, child, or parent with a serious health condition or to bond with a newborn child or a child who has been newly placed with the employee for adoption or foster care. When an employee needs time away from the workplace to fulfill caregiving responsibilities, these laws should be considered along with applicable discrimination statutes in determining the appropriate course of action regarding the employee.