On May 23, 2007, the United States Equal Employment Opportunity Commission (“EEOC”) released new enforcement guidelines effective immediately designed to provide guidance to EEO investigators, employers, and employees “regarding unlawful disparate treatment under the federal EEO laws of workers with caregiving responsibilities.” Sometimes referred to with the misnomer of “the motherhood penalty,” caregiving responsibility discrimination claims arise not only in situations where a female or male employee must care for minor children, but also in situations where employees have the responsibility of caring for adult children or parents.

Although the current federal EEO laws do not specifically prohibit discrimination on the basis of caregiving responsibilities, protection on such basis may come from current federal statutes such as Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., or the Americans with Disabilities Act of 1990 (“ADA”), 29 U.S.C. § 706, et seq. The most frequently used mechanism for caregiving responsibility discrimination is undoubtedly Title VII.

Under Title VII, these claims are typically articulated as a claim regarding sex-based discrimination and work much the same under Title as straight sex-based discrimination claims—requiring proof that the employee was treated less favorably after the employee’s caregiving responsibilities arose and that an adverse employment action was taken against the employee on the basis of his or her sex.

Some situations noted by the EEOC as giving rise to potential caregiving responsibility claims include unlawful disparate treatment of female or male caregivers and unlawful gender role stereotyping of working women or men. For example, the investigation of a female plaintiff’s caregiving responsibility discrimination claim might focus on whether she was asked about her caregiving responsibilities during an interview when her male counterpart was not, whether she was treated less favorably than her male counterpart who does not have caregiving responsibilities, or whether the employer assigned her a less prestigious position in light of her caregiving responsibilities than it assigned to her male counterpart who did not have the same caregiving responsibilities.

The Enforcement Guidance further states that caregiving responsibilities disproportionately affect working women and women of color, finding that African American women are more likely to be employed while raising young children than women of other races and that African American and Hispanic women are more likely to raise children in a single-parent household than White or Asian American women. The EEOC is also careful to note that women are not the sole focus of the guidelines—in fact, the Commission’s statistics find that between 1965 and 2003, the amount of time that men spent performing childcare duties nearly tripled.

The EEOC is careful to explain that the guidelines are not intended to create a new protected class; rather, they are intended to illustrate situations in which stereotyping or other forms of disparate treatment on the basis of caregiving responsibilities may occur. Though federal EEO laws do not directly prohibit caregiving responsibility discrimination, employers should be aware of specific obligations arising from certain state and/or local anti-discrimination laws, such as those in Alaska and the District of Columbia. In addition, other federal laws, such as the Family Medical Leave Act, impose specific obligations upon employers with regard to employee caregivers.