With summer just around the corner, many employers will experience an uptick in requests for time off and flexible work arrangements as employees try to figure out who will care for their children and other family members when school is out. While federal law may not explicitly provide leave to care for healthy kids or specifically prohibit discrimination against caregivers, an employer’s response to these requests, in some instances, could give rise to liability. As the Equal Employment Opportunity Commission continues to focus on protecting pregnant workers and individuals with caregiving responsibilities, employers should review their policies to ensure that employment decisions concerning such employees are applied uniformly and consistently.
Some key considerations include:
- Sex-based stereotypes. According to guidance issued by the EEOC, sex discrimination against working mothers is prohibited by Title VII of the Civil Rights Act of 1964, even if the employer’s actions are not adverse to women without children. Title VII also prohibits employers from treating female workers less favorably than males based merely on an assumption that caretaking responsibilities will interfere with their performance.
- Male caregivers cannot be treated differently from female caregivers. It may be unlawful, for example, to deny a male employee’s request for leave for childcare purposes while granting a similar request from his female counterpart.
- Similarly situated caregivers should not be treated differently from one another. An employer’s handling of requests for alternative work arrangements could be an adverse employment action that forms the basis for a discrimination claim on the basis of race, ethnicity, age or other protected characteristics.
A good starting point for employers reviewing their workplace policies regarding workers with caregiving responsibilities is the EEOC’s guidance, “Employer Best Practices for Workers with Caregiving Responsibilities.” While the EEOC’s best practices are not required by law to be followed, adopting at least some of these may reduce the risks associated with claims of disparate treatment, disparate impact and retaliation under Title VII. The following are some EEOC best practices:
- Develop, disseminate, and enforce a strong equal employment opportunity policy that clearly addresses the types of conduct that might constitute unlawful discrimination against caregivers based on characteristics protected by federal anti-discrimination laws.
- Ensure that managers at all levels are aware of, and comply with, the organization’s work-life policies.
- Respond to complaints of caregiver discrimination efficiently and effectively. Treat these issues as seriously as other complaints of discrimination or harassment.
- Review employment policies and practices — particularly those related to hiring, promotion, pay, benefits, attendance, and leave — to determine whether they disadvantage workers with caregiving responsibilities.
Recruitment, Hiring, and Promotion
- Develop specific, job-related qualification standards for each position that reflect the duties, functions, and competencies of the position and minimize the potential for gender stereotyping and other unlawful discrimination against caregivers.
- Ensure employment decisions are well-documented and transparent (to the extent feasible).
- Monitor compensation practices and performance appraisal systems for patterns of potential discrimination against caregivers. Ensure performance appraisals are based on employees’ actual job performance and not on stereotypes about caregivers.
Terms, Conditions, and Privileges of Employment
- Review workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure they are necessary to business operations.
- Reassign job duties that employees are unable to perform because of pregnancy or other caregiving responsibilities.
- Provide reasonable personal or sick leave to allow employees to engage in caregiving, even if not required to do so by the federal Family and Medical Leave Act.
Complying with applicable federal laws is only part of the challenge for employers. State and local law also may provide affirmative rights to employees with caregiver responsibilities. Many states have enacted family or medical leave laws that cover a broader range of circumstances than under federal law, such as a right to leave work to accompany a child to routine but necessary medical or dental appointments.