EEOC Addresses Employer Best Practices For Avoiding "Caregiver Litigation"
The United States Equal Employment Opportunity Commission (“EEOC”) has issued Employer Best Practices for Workers with Caregiving Responsibilities (“Best Practices”), which makes recommendations for avoiding discrimination claims by employees who have caregiving responsibilities, in response to the increasing litigation being filed by pregnant women, parents of young children and employees caring for sick relatives.
Specifically, many employees contend that they have been subjected to gender-based stereotyping and disparate treatment based on caregiver roles. The EEOC recognizes this theory of discrimination and has provided numerous examples of prohibited conduct, including:
- Asking female, but not male, applicants/employees about their child-care responsibilities;
- Treating females who are not caregivers more favorably than female caregivers; and
- Denying male workers’, but not female workers’, requests for leave related to caregiving responsibilities.
Such conduct, depending on the circumstances, may be unlawful gender discrimination under Title VII to the Civil Rights Act of 1964 (“Title VII”) or “association” discrimination under the Americans with Disabilities Act (“ADA”).
In Best Practices, the EEOC makes several recommendations. Key recommendations are highlighted below.
General Employment Best Practices
- Train managers about the legal obligations that impact decisions about workers with caregiving responsibilities;
- Develop and enforce a strong EEO policy that specifically addresses caregiver protections; and
- Ensure that all managers are aware of, and comply with, the organization’s work-life policies, such as leave approvals and flexible work arrangements.
Recruitment, Hiring and Promotion Best Practices
- Develop qualification standards for each position that reflect job duties, functions, and competencies and minimize the potential for gender stereotyping and other unlawful discrimination against caregivers;
- Ensure that job openings, promotions, etc. are communicated to all eligible employees regardless of caregiving responsibilities; and
- Identify and remove barriers to re-entry for individuals who have taken leaves of absence due to caregiving responsibilities.
Terms, Conditions and Privileges Best Practices
- Monitor compensation practices and performance appraisal systems for patterns of potential discrimination against caregivers, ensuring that decisions are based on actual job performance and not caregiver stereotypes;
- Review workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure that they are necessary to business operations; and
- Post employee schedules as early as possible for positions that have changing work schedules so that employees can arrange for child care or address other personal responsibilities, thereby enabling them to more readily fulfill work responsibilities.
Per the EEOC, “Employers adopting flexible workplace policies that help employees achieve a satisfactory work-life balance may not only experience decreased complaints of unlawful discrimination, but may also benefit their workers, their customer base, and their bottom line.”
The EEOC has not created a new protected class of “caregivers,” and its recommendations are not mandatory. However, implementing these recommendations should help protect employers in the emerging area of “caregiver litigation.”
In sum, we recommend that employers: (1) Update policies as noted above; (2) Train managers to be aware of the risks of caregiver discrimination; and (3) Audit personnel practices to identify and remedy any discriminatory practices.
Please feel free to contact us if you need assistance in implementing any recommended best practices or in responding to caregiver litigation.