Family Responsibility Discrimination

By Craig M. Brooks

The U.S. Equal Employment Opportunity Commission (EEOC) is out drumming up business in a new area – family responsibility discrimination – involving employment discrimination against caregivers, such as pregnant female employees or employees seeking leave to care for children or parents. This subject is targeted by the EEOC in its publicity (recently issued Guidelines) and in its current enforcement efforts, including recent lawsuits against employers. The EEOC is using existing laws rather than waiting for new legislation.

It is well known that larger employers, with fifty or more employees, are required under the Family & Medical Leave Act (FMLA) to provide employees time off from work for, among other things, caring for a seriously ill family member or staying home with a new child within the first year after birth, adoption or placement in foster care. But the EEOC is recognizing that other long existing employment discrimination laws can and should be used to protect employees against discrimination arising out of care giving activities. Sex discrimination laws are the main source of protection and rights involving family responsibility discrimination issues.

The most common area where employers get into trouble is treating females who are pregnant or have young children differently than males with similar family circumstances when it comes to promotions, pay, training, discipline, hiring, etc. Unfortunately many managers have different views about female compared to male parents’ roles, and these views conflict with employers’ equal employment opportunity obligations. We have clients on both sides of this issue involved in increased EEOC action, including lawsuits, in this area.

Examples of common problems are denying promotions or desirable assignments to females because of concerns that their care giving responsibilities will interfere with work. The problem is not in holding employees to whatever standards of quality, productivity, attendance, etc. that an employer adopts but in acting on gender based stereotyped presumptions rather than actual performance. In addition to gender based distinctions, other problem areas include managers being influenced by presumptions regarding race or disability status. Disability discrimination law protects not only those with or regarded as having a substantial impairment but also those associated with (i.e., living with) a disabled person. Managers should be trained to recognize potential pitfalls and be guided to act on (not ignore) demonstrated individual job-related characteristics.

The law is not new in this area, but the EEOC’s increased focus and publicity in this area will increase the number of claims. A significant portion of the working population has caregiver responsibilities, whether for young children or ill parents, creating many potential claimants to whom the EEOC is currently attentive. Employers are well advised to also be attentive to this issue in fashioning ways to review and guide their managers’ actions.

Please feel welcome to contact Craig Brooks if you have questions on this or any other employment law topic.