On April 22, 2009, the EEOC issued a technical assistance document entitled "Employer Best Practices for Workers with Caregiving Responsibilities" which provides "suggestions for best practices that employers may adopt to reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity." The guidance is designed to supplement the enforcement guidance it issued in 2007 on the "Unlawful Disparate Treatment of Workers with Caregiving Responsibilities." Among other things, the guidance encourages employers to adopt flexible work options, to provide reduced-time options, to reassign job duties that a worker cannot perform due to pregnancy or caregiving responsibilities, and to offer personal or sick leave to allow employees to engage in caregiving even if not required to do so by the FMLA.
Because the document admittedly suggests "proactive measures that go beyond federal non-discrimination requirements" an employer's decision not to embrace the EEOC's suggestions would not constitute a violation of law. On the other hand, to the extent employers adopt the EEOC's suggestions, they will have a better chance of avoiding liability for discrimination based on an employee's caregiver status. Employers adopting any of these recommended accommodations will want to ensure that their policies are uniform and consistently applied, regardless of gender. Any favoritism towards one gender or the other, especially if based on stereotypes, likely will be found to be a violation of state and federal sex discrimination laws.