• According to a study by the U.S. Department of Health & Human Services (DHHS), more than 50 million people provide care for a chronically ill, disabled or aged family member or friend during a given year.
• Family caregivers comprise 13 percent of the American workforce (DHHS).
• The U.S. Equal Employment Opportunity Commission (EEOC) has described family responsibility discrimination or caregiver discrimination as an emerging discrimination issue in the 21st century workplace.
• There are a growing number of lawsuits being filed with the EEOC against employers alleging discrimination against employees based on assumptions or stereotypes about their family caregiving responsibilities.
The EEOC Response:
The EEOC issued Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. The EEOC recognizes in the Enforcement Guidance that there is no federal equal employment opportunity (“EEO”) law that prohibits discrimination against caregivers per se, but explains how differential treatment of employees with caregiving responsibilities may violate existing laws prohibiting discrimination based upon gender, pregnancy – (Title VII of the Civil Rights Act of 1964, - “Title VII”), or disability – (the Americans with Disability Act of 1990 – “ADA”). The new Enforcement Guidance is designed to assist EEOC 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 or the ADA. The EEOC’s Enforcement Guidance is not the equivalent of the passage of a law however, it is important because it provides insight into what area of discrimination the EEOC considers is on a rising trend.
The new Enforcement Guidance illustrates various circumstances under which discrimination against a caregiver might violate federal EEO law. Examples include:
• Treating male caregivers more favorably than female caregivers: Denying women with young children an employment opportunity that is available to men with young children.
• Sex-based stereotyping of working women: Reassigning a woman to less desirable projects based on the assumption that, as a new mother, she will be less committed to her job; Reducing a female employee’s workload after she assumes full-time care of her niece and nephew based on the assumption that, as a female caregiver, she will not want to work overtime.
• Subjective decisionmaking: Lowering subjective evaluations of a female employee’s work performance after she becomes the primary caregiver of her grandchildren, despite the absence of an actual decline in work performance.
• Assumptions about pregnant workers: Limiting a pregnant worker’s job duties based on pregnancy-related stereotypes.
• Discrimination against working fathers: Denying a male caregiver leave to care for an infant under circumstances where such leave would be granted to a female caregiver.
• Discrimination against women of color: Reassigning a Latina worker to a lower-paying position after she becomes pregnant.
• Stereotyping based on association with an individual with a disability: Refusing to hire a worker who is a single parent of a child with a disability based on the assumption that caregiving responsibilities will make the worker unreliable.
• Hostile work environment affecting caregivers: Subjecting a female worker to severe or pervasive harassment because she is a mother with young children; Subjecting a female worker to severe or pervasive harassment because she is pregnant or has taken maternity leave; Subjecting a worker to severe or pervasive harassment because his wife has a disability.
Significance to the Prudent Employer:
• Recognize that the EEOC by issuing this Enforcement Guidance has signaled its investigators that they are to focus on caregiver protections, and this added focus will most likely result in increasing enforcement efforts in this area by the EEOC.
• Carefully analyze all employment scenarios involving family caregivers to ensure that decisions are based on legitimate business needs and actual employee performance and not stereotypes or biases.
• Recognize that the EEOC supports workplace flexibility and encourages employees to adopt best practices to make it easier for all workers, whether male or female to balance work and personal responsibilities.
• Train supervisors on the trend in caregiver discrimination claims and on how to avoid making assumptions or stereotypes on an employee’s abilities based on their caregiving responsibilities.
• Prevent harassment directed at caregivers in the workplace by training supervisors to avoid making discriminatory comments about caregivers, working mothers or pregnant employees.
• Ensure that caregivers are not subject to unlawful retaliation in the workplace.
If you have any questions on this or another employment law topic, please contact Craig M. Brooks.