The chances that an employee’s responsibilities to work and to family will collide have increased in the past few decades. Mothers are more likely to be employed than not, for example, and more individuals with aging parents have taken on caregiving roles.
Employees with caregiving responsibilities are not a protected group under federal workplace discrimination laws. Yet, the Equal Employment Opportunity Commission (EEOC) has released Enforcement Guidance under the title “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” According to the EEOC, the guidance is not intended to create a new protected category, but to illustrate circumstances in which stereotyping of caregivers, or other types of disparate treatment against caregivers, might violate Title VII discrimination laws or run afoul of the Americans with Disabilities Act’s prohibition of discrimination based on a worker’s association with a disabled individual.
The guidance discusses seven broad categories of possible unlawful discrimination against caregivers. The bulk of the guidance is about gender-based disparate treatment of female caregivers. The guidance explains that employment decisions that discriminate against workers with caregiving responsibilities are prohibited if they are based on gender or another protected characteristic, regardless of how other workers in the same protected class, but without the caregiving responsibilities, are treated. For example, if women with children are routinely passed over for an executive training program while men with children are selected for the program, the fact that women without children also are selected for the program would be no defense against a sex discrimination charge.
Similarly, gender-based assumptions about a future caregiving role-such as asking young female applicants, but not young men, their plans for marriage and children-would be unlawful. Other examples in this category include assigning lower-level projects to a new mother, not making an offer which requires a relocation to a qualified woman with a family based on the assumption that she wouldn’t want to move, or assigning more weight to absences or tardiness due to caregiving responsibilities than to those due to other reasons.
The guidance recognizes discrimination against male caregivers, stating that stereotyping about men as caregivers can result in them being denied certain opportunities that female co-workers have, or in harassment. So, for example, refusing to grant a male employee’s request for leave for childcare purposes while granting female employees’ requests would be discriminatory.
The EEOC notes that because the law does not prohibit discrimination based solely on parental or other caregiving status, there generally would not be a violation if working mothers and working fathers were both treated in a similar unfavorable (or favorable) manner, as compared to workers without children.
Assumptions about the job commitment of pregnant women, or about their ability to perform certain physical tasks, can amount to pregnancy discrimination. The guidance warns against pregnancy-related inquiries and treating a pregnant employee who is temporarily unable to perform some of the duties of her job differently than workers who are temporarily restricted for other reasons.
The guidance also addresses discrimination against women of color, unlawful caregiver stereotyping under the Americans with Disabilities Act and subjecting employees with caregiving responsibilities to hostile work environments.
The EEOC guidance should put employers on notice to review their workplace policies to ensure that hiring, promotion and other practices do not, inadvertently, treat employees with caregiving responsibilities in ways that violate federal discrimination laws for protected classes of workers. Also, state, city and county laws should be reviewed, as these may impose additional requirements.