Legal Updates

EEOC Issues New Guidance On “Family Responsibilities Discrimination”

August 2007 by William E. Hannum III

Due in large part to changing workforce demographics, an increased number of so-called “family responsibilities discrimination” claims, and employer challenges with managing employee work/life balance issues, the United States Equal Employment Opportunity Commission (“EEOC”) has taken the proactive measure of describing how EEOC-enforced laws apply to workers with caregiving responsibilities. On May 23, 2007, the EEOC issued new guidelines entitled, Unlawful Disparate Treatment of Workers With Caregiving Responsibilities (the “Guidance”), to address discrimination against working parents and other caregivers. This Guidance is clearly a wake-up call to employers that the EEOC is on the lookout for employer decisions based on assumptions about caregivers and work/life balance that may give rise to discrimination and other legal claims.

The EEOC’s stated purpose in issuing the Guidance is to assist 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 of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990. The Guidance is also intended to address changing workforce demographics, particularly the increased participation of women in the workforce, increasing eldercare responsibilities among workers, and the potential for greater discrimination against caregivers. As such, parents and caregivers may be protected based on sex and/or race, pursuant to the Family and Medical Leave Act, under the Americans with Disabilities Act of 1990, based on the worker’s association with an individual with a disability, or under other federal, state or local laws.

The EEOC emphasized, however, that the Guidance is not intended to create a new protected category based solely on parental or caregiver status, but rather to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate existing anti-discrimination laws.

A major force behind the issuance of the Guidance is the rising number of so-called “family responsibilities discrimination” cases in federal courts. These cases have involved claims under Title VII, the FMLA, ERISA, the ADA, the Equal Pay Act and common law legal theories such as breach of contract, tortious interference and wrongful discharge. The U.S. Supreme Court and federal district courts have consistently held that workplace decisions based on gender stereotypes will constitute sex discrimination. Moreover, the U.S. Supreme Court has held that “context matters” with regard to determining whether retaliation has occurred, and that a change in work schedules may make little difference to employees in general, but may matter enormously to mothers of school-age children. There is strong precedent showing that federal courts have historically protected caregivers from unlawful discrimination and retaliation, even prior to the issuance of the Guidance.

EEOC Investigations

The Guidance places employers on notice that EEOC investigators may be increasingly prone to finding unlawful discrimination where the complaint involves work/life balance issues. In addition, the Guidance suggests that employers can be held liable for discrimination even where the employer does not discriminate against a gender as a whole, but where the employer’s actions are based on an unconscious or even benevolent bias towards caregivers. Employers are also reminded that performance evaluations should be based on objective evaluation criteria and not subjective assessments based on biases against caregivers, and employers must show that employment decisions are made based on legitimate business reasons in instances where there is different treatment of an employee.

The “Maternal Wall”

The Guidance highlights that caregiving responsibilities continue to impose the heaviest burden on women, particularly women of color. Referred to as the “maternal wall” by the EEOC, as women enter the workforce, they are increasingly faced with conflicts between work and family obligations that may limit employment opportunities. The EEOC reports that this conflict and the resulting decisions that women are forced to make has expanded the “glass ceiling,” whereby the percentage of women in management and executive positions is disproportionately low as compared to their male counterparts. Despite the fact that more women than ever are entering today’s workforce, women continue to be most families’ primary caregivers, and thus generally face the greatest challenges with regard to issues of work/life balance.

The “Two-Income Family”

According to the Guidance, the work/life conflict is found most commonly in lower-paid workers, and disproportionately with people of color. Most families cannot afford to live on one income alone and couples are forced to share or “tag team” childcare responsibilities while working different shifts. The EEOC notes how this can particularly impact low-income workers, who have less control over inflexible employer policies, such as work schedule changes and mandatory overtime.

“Male Caregivers”

The Guidance indicates that male caregivers are not excluded from potential bias. Working fathers can be subject to sex discrimination if an employer denies the male worker certain employment opportunities that may be granted to working women. The EEOC provides that, in such cases, the employer is making an assumption about a working father’s commitment to his work obligations based on his gender, and this may lead to a gender discrimination claim. Male workers can also be adversely impacted by employer leave policies that allow women, and not men, time off for childcare responsibilities (exclusive, of course, of pregnancy leave).

“Elder Care Responsibilities”

Workers’ family responsibilities are not limited to childcare. The Guidance notes that the “baby boomer” or “the sandwich” generation is now often faced with challenges associated with caring for their children and elderly parents. For example, discrimination can result where an employer makes an assumption that a particular male or female worker cannot meet the requirements of a promotion and shoulder the burden of caregiving for children and elderly or disabled family members.

“Other Circumstances”

The Guidance provides a number of other specific circumstances under which discrimination against a worker with caregiving responsibilities might constitute unlawful disparate treatment under federal equal employment opportunity laws. Examples include:

Sex-based stereotyping of working women, such as assigning less desirable projects to a woman based on an assumption that, as a new mother, she will be less committed to her job;
Subjective decisionmaking, such as lowering the performance 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;
Discriminating against women of color, such as reassigning a Latina worker to a lower-paying position after she becomes pregnant;
Stereotyping based on an association with an individual with a disability, such as 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; and
Hostile work environment affecting caregivers, such as subjecting a female worker to severe or pervasive harassment because she is a mother with young children, or subjecting a male worker to severe or pervasive harassment because his wife has a disability.

No Retaliation

In the Guidance, the EEOC also reminds employers that retaliation is prohibited if an employee makes a complaint or files a charge related to a complaint of disparate treatment based on caregiving responsibilities.

Best Practices

The EEOC has encouraged employers to follow EEOC “Best Practices” to minimize the risk of liability and to help ensure compliance. On May 23, 2007, in a public meeting accompanying the issuance of the Guidance, the EEOC’s legal counsel, various human resources and workforce development experts, and advocates for working families and work/life balance provided a number of “best practices” for employers, which included:

Non-traditional scheduling, such as time off, flextime, job-sharing, telecommuting, compressed workweeks and seasonal schedules;
Childcare and eldercare benefits, such as elder and childcare referral services;
Work-life balance benefits, such as postal, dry cleaning and meal services;
Reimbursement of employees for the cost of childcare;
Expansion of various types leave to provide time for family care;
Employer programs to provide confidential assistance for employees struggling to manage a work/life balance; and
Lactation assistance, foster care, adoption assistance and employer-provided on-call daycare.

Panelists strongly suggested that providing these additional benefits to employees could increase employee retention and productivity and decrease absenteeism. And, as the EEOC has stated, “the Commission strongly encourages employers to adopt best practices to make it easier for all workers, whether male or female, to balance work and personal responsibilities.”

The Firm encourages employers to increase their awareness regarding potential claims of “caregiver discrimination,” including by conducting management training on these issues and consulting with experienced counsel when making employment decisions (such as hiring, promotions and termination decisions) to guard against the possibility of unwittingly triggering a claim of unlawful discrimination.