The Equal Employment Opportunity Commission ("EEOC") issued new guidelines on May 23, 2007 regarding "Unlawful Disparate Treatment of Workers with Caregiving Responsibilities." See Enforcement Guidance, http://www.eeoc.gov/policy/docs/caregiving.html. The EEOC examined gender stereotypes associated with family and caregiving responsibility and how these stereotypes can be used by employers to discriminate against pregnant women, parents and other caregivers. The EEOC is focusing on this issue because young mothers are increasingly opting to remain in the workforce and "baby boomers" are finding themselves caring for aging parents while maintaining their employment.
The EEOC makes clear that the guidelines are not intended to create a new protected class. Nonetheless, disparate treatment based upon caregiving responsibilities can violate Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990; employers must therefore be aware of caregivers' work-life conflicts and at the same time not use sex- or pregnancy-based stereotypes to make decisions and draw conclusions about employees' needs and priorities.
Employers should be particularly cognizant of the following stereotypes:
- Female caregivers will be less committed to their jobs and less willing to work long hours and/or travel for work.
- Pregnant women will not be able to devote sufficient time to work, will be frequently absent and will be unable to fulfill their work obligations.
- Male workers do not require leave to care for a child or other family member.
- Single parents will be unreliable workers because of their childcare needs.
Moreover, under the EEOC guidelines, employers must be increasingly aware of their obligation not to favor employees without children over women who are pregnant or women or men who have children. Further, employers cannot treat employees less favorably because they perceive that the employee will in the future have children or other caregiver responsibilities.
What Employers Should Do
Employers should focus on the following categories of discrimination based upon caregiving responsibilities in seeking to adopt practices and policies to prevent claims of discrimination:
1. Sex-based Disparate Treatment of Female Caregivers and Discrimination Against Pregnant Women
- Be careful not to ask job applicants whether they are married, have children, intend to have children or have other caregiving obligations.
- Be mindful not to treat a pregnant employee differently by anticipating that she will not perform her work duties satisfactorily or assuming that once she has a child she will no longer be devoted to her work.
- Do not deny a woman a promotion after she returns from maternity leave based upon an unfounded notion that she will not be able or willing to handle more responsibility at work.
2. Discrimination Against Male Caregivers
- Employers may provide women special leave following pregnancy and related medical issues; however, employers should provide men and women with equal opportunity for childcare leave.
- Provide men and women with equal terms and conditions for caregiver leave, reduced hours and hour flex-time arrangements.
3. Disability Discrimination under the Americans with Disabilities Act
- Do not ask job applicants whether they care for a disabled child or family member.
- A job applicant who discloses that he or she is the sole caregiver to a disabled child may not be denied a job based upon an assumption that he or she will be frequently late, absent or unable to meet his or her professional obligations.
While the EEOC reminds employers that they may not retaliate against individuals who oppose unlawful discrimination against caregivers, employers still may take appropriate action against employees with caregiving responsibilities who also have performance problems. Of course, employers are not expected to ignore excessive and/or unexcused absences, missed deadlines or low-quality work product. Employers should take a fresh look at their policies concerning hiring, attendance, promotion and leave to ensure that they comply with the EEOCfs guidelines in order to limit the likelihood of future claims of alleged discrimination based upon bias against caregivers. ¡