Caregiver Responsibility Discrimination and the Equal Employment Opportunity Commission (EEOC) Guidelines: Policy and Practice Issues for Employers

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INTRODUCTION

In May of 2007 in response to a perceived "potential for greater discrimination against working parents and others with caregiving responsibilities", the United States Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance addressing Unlawful Disparate Treatment of Workers with Caregiving Responsibilities (EEOC-A, 2007). On April 22, 2009, the EEOC issued additional guidance to employers offering "proactive measures that go beyond federal non-discrimination requirements" designed to reduce employers' exposure to litigation for "violations against caregivers, and to remove barriers to equal employment opportunity" (EEOC B, 2009).

What is unlawful disparate treatment of workers with caregiving responsibilities? While there are no federal statutes that prohibit discrimination based "solely" on parental or other caregiver status, unlawful disparate treatment arises when an employee with caregiving responsibilities is subjected to discrimination based on a protected characteristic under federal Equal Employment Opportunity (EEO) law (EEOC A, 2007). The enforcement guidance from the EEOC provides a number of examples of circumstances under which discrimination against caregivers may violate federal EEO law (See Exhibit 1).

Exhibit 1 Examples of Circumstances that may Violate Federal EEO Law

* 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 decision making: 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 (EEOC A. 2007).

The EEOC has made it clear, that their guidance with respect to caregivers does not protect caregivers based on their caregiving status alone. In the past, that has meant that the unlawful disparate treatment must arise where a caregiver is discriminated in employment based on their sex or race. Action in this regard may also arise under the Americans with Disabilities Act (ADA) and under other federal statutes including the Family and Medical leave Act (FMLA) (EEOC A, 2007). While previous research would indicate that this has been primarily a problem for women in the workplace (See Still, 2006, Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination against Workers with Family Responsibilities) the EEOC guidelines cite numerous examples and case law involving discrimination against male caregivers. …