On May 23, 2007, the Equal Employment
Opportunity Commission issued a new Enforcement Guidance regarding
unlawful disparate treatment of workers with caregiving
responsibilities. The EEOC observes that guidance on this subject is
warranted because of the greater potential for discrimination against
working parents and others with caregiving responsibilities,
particularly in light of recent changes in workplace demographics and
increased participation of women in the workforce.
It should be noted that the new
Guidance does not create a new protected category for “caregivers.” In
order for discrimination against caregivers to be unlawful under Title
VII or the ADA, it must still be based on a protected characteristic
such as race, sex, or disability. In that regard, the EEOC Guidance
offers specific examples of “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 worker’s
association with an individual with a disability.” The Guidance
discusses such circumstances within the context of the following topics:
1) sex-based disparate treatment of female caregivers; 2) pregnancy
discrimination; 3) discrimination against male caregivers; 4)
discrimination against women of color; 5) caregiver stereotyping under
the ADA; 6) hostile environment harassment; and 7) retaliation.
The new Enforcement Guidance is also
accompanied by a “Question and Answer” document which highlights some of
the key aspects of the Guidance. For example, the Q & A offers several
examples of circumstances under which discrimination against a caregiver
might violate Title VII or the ADA, including:
1) Treating male caregivers more
favorably than female caregivers, such as denying women with young
children an employment opportunity that is otherwise available to men
with young children;
2) Sex-based stereotyping of working
women, such as reassigning a woman less desirable projects based on the
assumption that, as a new mother, she will be less committed to her job;
3) Stereotyping based on 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;
4) Harassment affecting caregivers,
such as subjecting a female worker to a hostile work environment because
she is a mother with young children, because she is pregnant, or because
her spouse has a disability;
5) Discrimination against working
fathers, such as denying a male caregiver leave to care for an infant
under circumstances where such leave would have been granted to a female
caregiver.
These are but a few of the examples of
potential discrimination against caregivers that are discussed in the
Guidance and related “Question and Answer” documents. Again, while the
EEOC does not proclaim to have created a new protected category, this
Enforcement Guidance certainly suggests a new area of focus and scrutiny
by the agency. Therefore, employers should take proactive steps, such as
prompt training of managers and review of policies and practices, to
ensure that all forms of illegal discrimination, harassment, and
retaliation-- including those against caregivers on the basis of
protected categories such as sex, race, and disability-- are not
permitted to exist in the workplace.
If you have any questions regarding
this alert or other employment law related issues, please contact
Robert Meyer at
704.342.5347 or rbmeyer@poynerspruill.com
or Susie Gibbons
at
919.783.2813 or
sgibbons@poynerspruill.com.
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