New EEOC Guidance Designed "To Assist" Employers

The Equal Employment Opportunity Commission (EEOC) recently issued an enforcement guidance declaring the disparate treatment of employees who care for children, parents or other family members to violate federal law. According to the federal agency, the purpose of the guidance is to "assist investigators, employees, and employers in assessing whether a particular employment decision affecting a caregiver might unlawfully discriminate on the basis of prohibited characteristics under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act [ADA] of 1990." The EEOC clarified, however, that the document is not intended to create a new protected category of employees with caregiving responsibilities.

The guidance highlighted several forms of caregiving that may impact an individual's work obligations. The most common is childcare, followed by eldercare and caring for individuals with disabilities. "As with childcare," the guidance noted, "women are primarily responsible for caring for society's elderly, including care of parents, in-laws and spouses." Unlike childcare, the guidance pointed out, eldercare responsibilities generally increase over time, and eldercare can be less predictable than childcare due to the potential of a health crisis.

The guidance lists various circumstances under which discrimination against a worker with caregiving responsibilities constitutes unlawful disparate treatment under Title VII or the ADA. The first example listed below identifies a situation where an employer may have discriminated against a female employee with young children. Despite the possible violation, the guidance notes that an employer does not generally violate Title VII if it treats working mothers and working fathers in a similar manner as childless workers.

Example 1. Charmaine, a mother of two preschool-age children, files an EEOC charge alleging sex discrimination after she is rejected for an opening in her employer's executive training program. The employer asserts that it rejected Charmaine because candidates who were selected had better performance appraisals or more managerial experience and because she is not "executive material." The employer also contends that the fact that half of the selectees were women shows that her rejection could not have been because of sex.

However, the investigation reveals that Charmaine had more managerial experience or better performance appraisals than several selectees and was better qualified than some selectees, including both men and women, as weighted pursuant to the employer's written selection policy. In addition, while the employer selected both men and women for the program, the only selectees with preschool age children were men. Under the circumstances, the investigator determines that Charmaine was subjected to discrimination based on her sex.

While women continue to be most families' primary caregivers, men's role has increased over the last several decades. According to the guidance, "[b]etween 1965 and 2003, the amount of time that men spent on childcare nearly tripled, and men spent more than twice as long performing household chores in 2003 than they did in 1965." The increased reliance on fathers as the primary childcare provider is illustrated in the example below.

Example 2. Eric, an elementary school teacher, requests unpaid leave for the upcoming school year for the purpose of caring for his newborn son. Although the school has a collective bargaining agreement that allows for up to one year of unpaid leave for various personal reasons, including to care for a newborn, the Personnel Director denies the request.

When Eric points out that women have been granted childcare leave, the Director says, "That's different. We have to give childcare leave to women." He suggests that Eric instead request unpaid emergency leave, though that is limited to 90 days.

This is a violation of Title VII because the employer is denying male employees a type of leave, unrelated to pregnancy, that it is granting to female employees.

Caring for individuals with disabilities also has increased dramatically. The most recent U.S. census finds that nearly a third of families have at least one family member with a disability, and about one in ten families with children under 18 years of age included a child with a disability. The below example identifies a situation in which an employer may have violated the ADA based on an employee's association with an individual with a disability.

Example 3. An employer is interviewing applicants for a computer programmer position. The employer determines that one of the applicants, Arnold, is the best qualified, but is reluctant to hire him because he disclosed during the interview that he is a divorced father and has sole custody of his son, who has a disability. Because the employer concludes that Arnold's caregiving responsibilities for a person with a disability may have a negative effect on his attendance and work performance, it decides to offer the position to the second best qualified candidate, Fred, and encourages Arnold to apply for any future openings if his caregiving responsibilities change. Under the circumstances, the employer has violated the ADA by refusing to hire Arnold because of his association with an individual with a disability.

The guidance provides these and many more examples to help employ-ers avoid EEOC charges and litigation in this area. For a copy of the guidance, visit the EEOC's website at http://www.eeoc.gov/policy/docs/caregiving.html.

In a separate development, the U.S. Department of Labor (DOL) released a report on June 27 analyzing the more than 15,000 comments submitted by advocates and critics of the Family and Medical Leave Act (FMLA). Although the DOL has no immediate plans to issue the long-awaited proposed regulations, an agency representative stated, "We hope the report provides a groundwork for more discus-sion about the FMLA and helps all sides face some hard truths about the disagreements over the law."

The report found that a "central defining theme" of the comments was the problem created by intermittent leave. Employers in industries such as manufacturing, transportation and health care complained about the difficulty in accommodating intermittent leave in time-sensitive occupations. Another major concern outlined in the report was the issue of medical certification. "[N]one of the parties involved in the medical certification process - employers, employees, and health care providers - are happy with the current system," the report says. A copy of the report can be found at the DOL's website at http://www.dol.gov/esa/whd/FMLA2007FederalRegisterNotice/07-3102.pdf.