New Enforcement Guidance From EEOC Regarding Workers With "Caregiving Responsibilities"

publications full of ideas

06.18.2007

Robert B. Meyer

Susanna Knutson Gibbons

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:

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;
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;
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;
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;
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.

Physical Address: 301 Fayetteville Street, Suite 1900, Raleigh, NC 27601

related information

06.18.2007