On May 23, 2007, the Equal Employment Opportunity Commission (“EEOC”) adopted new guidance regarding the treatment of employees who provide care for children, parents, or disabled family members. This guidance does not create a new protected classification for caregivers; however it explains various circumstances under which employers may knowingly or unknowingly discriminate against caregivers due to their gender, race or other protected characteristics.

The circumstances under which discrimination against a caregiver may violate the federal discrimination laws include:

• Treating male caregivers more favorably than female caregivers (e.g., denying women with young children job opportunities that are available to men with young children);

• Sex-based stereotyping of working women who are caregivers (e.g., assuming that a new mother will be less committed to her job);

• Making assumptions about pregnant workers (e.g., limiting a pregnant worker’s job duties);

• Discrimination against working fathers (e.g., denying a male caregiver leave to care for a child);

• Stereotyping based on an association with a disabled family member (e.g., refusing to hire a worker with a disabled parent or child).

In addition to potential discrimination issues under federal, state and local laws, employers may also have obligations to employees with caregiver responsibilities for family members under the federal Family and Medical Leave Act, as well as state leave laws.

In light of this new guidance, the EEOC will likely be carefully examining employers’ treatment of caregivers. Employers should scrutinize their policies and practices to ensure that they are applied fairly to employees in their workplaces who are caregivers.