Evolving societal trends, including women's increasing participation in the workforce and men's increasing involvement with childcare and other family duties, have led to a substantial increase in disparate treatment claims brought by employees with caregiving responsibilities (e.g., of children, the elderly, and the disabled). To illustrate, the Equal Employment Opportunity Commission (EEOC) has stated that caregiver discrimination claims have increased by 400% in the last decade.
As a proactive measure to help employers identify and prevent caregiver discrimination claims, on May 23, 2007, the EEOC issued guidance entitled, "Unlawful Disparate Treatment of Workers with Caregiving Responsibilities" and accompanying "Questions and Answers about EEOC's Enforcement Guidance." Although the EEOC has not created a new lawfully protected class of employees, it has illustrated circumstances in which gender or racial stereotyping or other forms of disparate treatment may violate Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act of 1990 (the "ADA").
While we encourage you to review the EEOC's new publications in their entirety, this article highlights some of their key points. The full text of the Enforcement Guidance and the Questions and Answers are available on the EEOC's Web site at www.eeoc.gov/policy/docs/caregiving.html.
While some state or local laws may provide broader protections to employees with caregiving responsibilities, neither Title VII nor the ADA prohibits discrimination based on parental or other caregiver status. Significantly, however, Title VII prohibits discrimination against a caregiver based on his or her sex and/or race, and the ADA prohibits discrimination against a caregiver based on his or her association with a disabled individual. Accordingly, for the benefit of employers, employees, and agency investigators alike, the EEOC has illustrated an array of circumstances under which conduct toward a caregiver might violate Title VII or the ADA.
Sex-Based Disparate Treatment - Female Employees
Stereotypes that female caregivers should not, will not or cannot be committed to their jobs are sex-based, and adverse employment actions based on such sex-based assumptions, rather than on employees' specific work performances, violate Title VII. This is true even if the employer is not acting out of hostility. For example, an employer may be violating Title VII if it benevolently assumes that a working mother with a young child would not wish to relocate to another city for a promotion.
It is important to note, however, that employment decisions that are based on an employee's actual work performance, rather than on assumptions or stereotypes, do not violate Title VII, even if an employee's unsatisfactory work performance is attributable to caregiving responsibilities.
In the view of the EEOC, relevant evidence in charges alleging disparate treatment of female caregivers may include: (1) whether the employer asked female applicants, but not male applicants, if they were married, had young children, or had childcare duties; (2) whether male caregivers received more favorable treatment than female caregivers; (3) whether female caregivers were assigned to less prestigious or lower-paid positions; (4) whether decision makers made stereotypical or derogatory comments about working mothers or other female caregivers; and (5) whether the employer deviated from workplace policy when it took the action being challenged.
Sex-Based Disparate Treatment - Pregnant Employees
Title VII's prohibition against sex discrimination encompasses a prohibition against employment decisions based on pregnancy. Because Title VII prohibits pregnancy discrimination, employers should not make pregnancy-related inquiries. The EEOC typically will regard a pregnancy-related inquiry as evidence of pregnancy discrimination where the employer thereafter makes an unfavorable job decision impacting the worker. Note that pregnancy testing also implicates the ADA, which restricts an employer's use of medical examinations. At the same time, an employer is free to deal with the effects of pregnancy (e.g. missed work, work restrictions, etc.) in the same way is treats other, equally disabling medical conditions.
Sex-Based Disparate Treatment - Male Employees
Unlawful assumptions about working fathers and other male caregivers have, at times, resulted in employers denying male employees opportunities that have been provided to female employees in violation of Title VII. For example, some employers unlawfully have denied male employees' requests for childcare leave while granting female employees' requests.
Notably, while employers are permitted under Title VII to provide women with leave for incapacitation because of pregnancy, childbirth, and related medical conditions, employers may not treat either sex more favorably with respect to other kinds of leave, such as leave for childcare purposes.
Race-Based Disparate Treatment: Female Employees of Color
Race or national origin discrimination may be an additional employment hurdle confronted by women of color who are caregivers. To illustrate, a Latina working mother might be subjected to Title VII sex and race discrimination both by her supervisor based on his or her stereotypical ideas about working mothers and his or her hostility toward Latinas in general.
The ADA prohibits discriminatory treatment of an employee based on his or her relationship with a disabled individual. For example, it would be a violation of the ADA to refuse to hire a single father with sole custody of a disabled child based on a belief that his caregiver responsibilities would negatively impact his attendance and/or work performance.
Hostile Work Environment
Employers may violate Title VII if workers with caregiving responsibilities are subjected to offensive comments or other harassment based on sex, race, association with a disabled individual, or other protected characteristics, and the conduct is sufficiently severe and pervasive to create a hostile work environment. The same legal standards that apply to other forms of harassment also apply to unlawful harassment directed at caregivers.
Because discrimination against caregivers may violate Title VII or the ADA, retaliation against workers who complain about such discrimination likewise may violate these statutes.
Strictly speaking, the EEOC's Enforcement Guidance does not create new legal standards. Nevertheless, it certainly indicates a heightened emphasis by the EEOC on issues confronting caregivers in the workplace. Employers need to ensure that they do not overlook this area of potential liability.
If you have any questions about this article or the EEOC's new Enforcement Guidance, please contact Peter Donati (312.476.7590 or
firstname.lastname@example.org) or any other member of Levenfeld Pearlstein's Employment Service Group.