Employers should take note of a recently-released guidance issued by the Equal Employment Opportunity Commission (“EEOC”) concerning “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” This guidance does not change federal law or create a new protected category; however, it does highlight the EEOC’s focus on claims of discrimination by employees with caregiving responsibilities. This guidance essentially indicates that, in addition to employees’ rights under the FMLA, employers now must be aware that the EEOC is looking to assert other types of claims on behalf of caregiving employees.

No federal laws prohibit discrimination against caregivers per se. Yet the EEOC believes that discrimination against caregivers may be illicitly motivated by other protected categories, such as sex or race (protected by Title VII of the Civil Rights Act of 1964) or disability (protected by the Americans With Disabilities Act of 1990). The EEOC also believes that caregivers are susceptible to retaliation by their employers as caregivers try to maintain their work schedules and family’s needs (e.g., pregnancy, childcare, caring for a sick or disabled family member, etc.).

Employers should be careful to avoid common assumptions and stereotypes about women caregivers. Working mothers should not be stereotyped as less reliable or lacking commitment to their jobs. Similarly, unwarranted assumptions should not be made about the abilities or dedication of a pregnant employee. After returning from leave for pregnancy or childcare, an employee should not be evaluated or treated less favorably merely because of having taken leave. Employers also must treat women and men with caregiving responsibilities the same and should not rely on stereotypes that men are less suited for caregiving or less likely to want to be caregivers. This issue is particularly important when granting leave. A male employee’s request should not be denied, while granting the same leave for female employees under analogous circumstances.

The EEOC cautions employers that discrimination could arise from situations such as the following:

  • An employer does not consider a female employee for a promotion because the company assumes she would not want to work the additional hours required for the position since she just had a child
  • A male employee’s request for a flexible schedule to facilitate child care is denied, while women in the same situation are allowed a flexible schedule
  • An employee is reprimanded for being late because of taking care of a disabled spouse, while other late employees are not reprimanded
  • Even though his job performance has not declined, an employee is harassed about his commitment to his job when he requests time off to care for his father who was recently diagnosed with Alzheimer’s

The EEOC’s guidance stresses that gender role stereotyping should be prevented in every step of employment, from the interview process to termination. No applicants should be asked about marriage or children—or future plans for either—or other caregiving responsibilities, and female applicants should not be rejected because of an assumption that they may be caregivers in the future. For example, working mothers and single parents should not be steered into less demanding or lower paying positions. Stereotypical assumptions never should be made about whether a female caregiver would want a promotion, change in hours, opportunity for overtime, or transfer to another location. Even employers’ well-intentioned assumptions, such as presuming that an employee would prefer more family time, may be used as evidence of discrimination.

Employers can avoid common pitfalls by basing all employment decisions actual credentials and performance, instead of assumptions or stereotypes. Performance standards and policies should be applied equally to all employees, and assessments should be made based on specific, objective factors, rather than unsupported beliefs. Even if an employee’s poor work performance is due to caregiving, employers will not violate the law if a termination or job change is made after applying consistent standards and an objective evaluation of work performance. Employers should be able to explain to the applicant or employee—and, potentially, a jury—the nondiscriminatory reasons for any employment decision. Proactive steps also should be taken to prevent harassment in the workplace due to pregnancy, role stereotyping, and parental or other caregiver responsibilities. Adhering to these considerations can help employers both minimize the likelihood of discrimination claims by caregiving employees and prevail if such claims are asserted.

If you would like additional information about policies and procedures regarding employees with caregiving responsibilities, or if you would like more information about training your supervisors not to engage in behavior that could be considered discriminatory, please contact your primary attorney at Wildman Harrold or David L. Weinstein, head of Wildman Harrold’s Employment & Labor Practice, at (312) 201-2685.