New EEOC Enforcement Guidance Addresses Unlawful Discrimination Against Workers with Caregiving Responsibilities

On May 23, 2007, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) issued its “Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” The stated purpose of the guidance is to provide assistance to investigators, employers and employees regarding the unlawful treatment of caregivers under Title VII and the Americans with Disabilities Act. The guidance does not add to the already long list of protected characteristics, a point the EEOC makes clear from the outset. Instead, it is intended to “illustrate circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a workers’ association with an individual with a disability.” The guidance applies not only to the care associated with a child, but also to care for other family members, including the elderly and those with disabilities.

The “Enforcement Guidance” may be found at http://www.eeoc.gov/policy/docs/caregiving.pdf.

The EEOC devotes a fair amount of attention to the circumstances that prompted the need to address potential discrimination against caregivers. For example, the EEOC notes that working mothers constitute a large percentage of today’s workforce and that women continue to serve as the primary caregiver in today’s families. Not surprisingly, many employees find it difficult to resolve conflicts between their work and family responsibilities. Employers, sometimes intentionally and sometimes not, begin to change or limit the employment opportunities of workers with caregiving responsibilities and, for women, this sometimes means hitting the proverbial glass ceiling or “maternal wall.” Sex-based stereotyping leads some employers to conclude that employees who are caregivers are less committed to their jobs, less dependable, and less competent. The EEOC makes it clear that employment decisions based on these stereotypes violate antidiscrimination laws “even when an employer acts upon such stereotypes unconsciously and unreflexively.”

The EEOC guidance pays special attention to African-American women, who it notes are more likely to be working outside the home than their Caucasian counterparts and who are often raising children in a single-parent household. In addition, this same group of women often have responsibilities for other family members, including parents, grandchildren, and other relatives. 

According to the EEOC, conflicts between work and family responsibilities have the greatest impact on lower-paid workers, who struggle with finding care for their charges and who are most likely to face inflexible employer policies. This is not to say that professional workers do not experience their own struggles. These workers often see their careers stalled when caregiving responsibilities begin and intensify. The guidance includes many citations, including one to the Federal Glass Ceiling Commission’s 1995 recommendation that employers adopt policies “that allow workers to balance work and family responsibilities throughout their careers.”

The guidance notes that employer stereotyping is often the cause of disparate treatment of workers with caregiving responsibilities: “women with caregiving responsibilities may be perceived as more committed to caregiving than to their jobs and as less competent than other workers, regardless of how their caregiving responsibilities actually impact their work.” When employment decisions are based upon these kinds of stereotypes, the employer violates the antidiscrimination laws. The Commission provides clear direction to employers in the following guidance language: “[t]he 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.” In the end, however, it seems clear from the discussion and examples cited by the Commission that in determining whether there has been discrimination against a caregiver, the same analysis used in evaluating other types of discrimination applies.

The guidance contains numerous illustrations showing how an employer’s actions with regard to a worker/caregiver could constitute discrimination and is broken down into six sections: (a) sex-based disparate treatment of female caregivers, (b) stereotyping and disparate treatment of pregnant workers, (c) sex-based disparate treatment of male caregivers, (d) disparate treatment of women of color who have caregiving responsibilities, (e) disparate treatment of workers with caregiving responsibilities for an individual with a disability, and (f) harassment resulting in a hostile work environment for a worker with caregiving responsibilities. Each is addressed briefly below.

Since the guidance does not create a new protected class, the Commission warns that the alleged adverse action against a female caregiver must be based upon her sex. The same evidence used to prove discrimination in other cases may be used here. The guidance provides a non-exhaustive list of potentially relevant evidence where disparate treatment of a female caregiver is alleged, including:

• “whether the respondent asked female applicants, but not male applicants, whether they were married or had young children, or about their childcare and other caregiving responsibilities;”
• “whether, despite the absence of a decline in work performance, the respondent began subjecting the charging party or other women to less favorable treatment after they assumed caregiving responsibilities;”
• “whether female workers without children or other caregiving responsibilities received more favorable treatment than female caregivers based upon stereotypes of mothers or other female caregivers;”
• “whether the respondent steered or assigned women with caregiving responsibilities to less prestigious or lower-paid positions;” and
• “whether statistical evidence shows disparate treatment against pregnant workers or female caregivers.”

The employer’s action against the worker/caregiver must be based upon sex or some other protected characteristics. And this is where it can get a bit tricky. According to the guidance, “sex discrimination against mothers is prohibited by Title VII even if the employer does not discriminate against childless women.” However, there is no prohibition against discrimination based solely on caregiver status. Thus, “an employer does not generally violate Title VII’s disparate treatment proscription if, for example, it treats working mothers and working fathers in a similar unfavorable (or favorable) manner as compared to childless workers.”

Avoiding sex-based stereotypes, even seemingly well-intentioned ones, is key to avoiding potential liability for discrimination against workers who are caregivers. The guidance cites a number of examples, including assumptions that caregiving responsibilities will interfere with work performance, that childcare responsibilities will make a female worker less dependable, that new mothers should not work long hours, that female workers who elect to work part-time are less committed and that a working mother would not be willing to relocate for a promotion. According to the Commission, all are sex-based stereotypes and are not legitimate bases for employment actions. Where the employer’s action is based upon the employee’s actual work performance, however, there is ordinarily no violation of Title VII “even if an employee’s unsatisfactory performance is attributable to caregiving responsibilities.”

In addition to stereotypes about the worker’s ability to balance work and family responsibilities, the EEOC notes that some stereotypes affect the employer’s assessment of the worker’s performance. Potential evidence of this kind of stereotyping includes “changes in an employer’s assessment of a worker’s performance that are not linked to changes in the worker’s actual performance and that arise after the worker becomes pregnant or assumes caregiving responsibilities, objective assessments that are not supported by specific objective criteria, and changes in assignments or duties that are not readily explained by nondiscriminatory reasons.”

The EEOC takes an equally strong position against pregnancy-related stereotypes that motivate adverse employment actions. The guidance warns that employer’s must avoid stereotyping based on pregnancy, including assumptions that pregnantwomen will have poor attendance or are unable to meet the requirements of their jobs. Similarly, an employer cannot treat a pregnant worker with a temporary medical restriction differently or less favorably than it would a non-pregnant worker with a similar restriction. 

The Commission recognizes that disparate treatment of male caregivers, though less frequent, still exists and may constitute unlawful gender-based discrimination. Once again, stereotypes typically fuel the fire. For example, the stereotype that men are primarily responsible for the financial support of the family could cause employers to treat a man with caregiving responsibilities or who elects to work part-time differently. In addition, employers must avoid denying male caregivers the opportunities that it would otherwise afford to female workers, such as leave for childcare purposes or the ability to work part-time.

The Commission believes that women of color who are caregivers also face possible race and national origin discrimination in addition to sex discrimination. The examples cited by the Commission include denying an African-American employee the use of compensatory time for childcare purposes when the same opportunity was afforded to white employees or re-assigning and harassing a pregnant, Latino employee based upon the employer’s race- and gender-based biases.

The EEOC guidance also addresses discrimination against a worker/caregiver who has responsibility for a disabled individual. According to the guidance, “an employer may not treat a worker less favorably based on stereotypical assumptions about the workers’ ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability.” The example provided by the Commission relates to a prospective employee who is interviewed but not offered a position because he has caregiving responsibilities for his disabled son. In this scenario, the employer has discriminated against the prospective employee because of his association with a disabled individual. 

The final section of the guidance covers unlawful harassment of caregivers and pregnant workers. As with the other potential forms of caregiver discrimination, “[t]he same legal standards that apply to other forms of harassment prohibited by the EEO statutes also apply to unlawful harassment directed at caregivers and pregnant workers.” As with other forms of harassment, the Commission directs employers to implement policies to prevent harassment directed at caregivers and to immediately correct any problems. The examples included in the guidance are not unlike those that you see in the typical harassment case. In one example, a worker becomes pregnant, takes a maternity leave, and then returns to assume her job responsibilities. Along the way, her supervisor makes comments about her pregnancy, monitors the workers’ lunch breaks when he does not do the same for other workers, and makes comments that the worker cannot be both a good mother and a good supervisor. The worker complains but the employer does nothing. According to the EEOC, this conduct created a hostile work environment for the worker and the employer is liable. Two additional examples cover pregnancy and care for an individual with a disability.

The EEOC guidance addresses some of the many issues employers face on a regular basis with respect to their treatment of workers with caregiving responsibilities. The legal standards the Commission cites are by no means new and caregivers are not elevated to a new protected status under the antidiscrimination laws. Indeed, disparate treatment based upon one’s caregiver status alone does not support a discrimination claim. However, the guidance makes clear the interplay between one’s caregiver status and those characteristics that are protected under the law, including gender, race, and disability. Sometimes the nuances make it difficult for an employer to determine whether its own conduct is unlawful. The bottom line is this: an employer cannot take adverse action against an employee with caregiving responsibilities where the action is linked to the employee’s gender, race, or other protected characteristic. The guidance does not prohibit an employer from legitimately assessing the employee’s actual work performance and taking action, even where the poor work performance may be directly tied to caregiving responsibilities. Nor is there any prohibition against treating all caregivers, men and women alike, differently or less favorably. Avoiding decisions based upon a protected characteristic was, and still is, the golden rule.