Many employers are familiar with the Enforcement Guidances published by the Equal Employment Opportunity Commission (EEOC). An Enforcement Guidance does not have the force of law. Instead, it is published to assist EEOC investigators, and to help employees and employers understand the EEOC’s enforcement view on the federal laws it enforces. Most are familiar with Enforcement Guidances on reasonable accommodation under the ADA, as well as supervisor liability for sexual harassment. Fewer employers, however, are familiar with the EEOC’s Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. Published on May 23, 2007, the Guidance illustrates ways in which employer policies and practices can unwittingly result in disparate treatment of employees who have caregiving responsibilities outside of work, particularly women, in violation of Title VII.
Employees increasingly find themselves responsible for providing care of loved ones outside of work. These responsibilities are not limited to childcare, but include caregiving to the elderly. Demographers predict that this trend will likely continue as the Baby Boomer population ages. The Enforcement Guidance cites several studies showing that, as with childcare, women are primarily responsible for caring for society’s elderly, including care of parents, in-laws, and spouses. These studies also show that, unlike childcare, eldercare responsibilities generally increase over time as the person cared for ages, and is much less predictable than childcare because it tends to be more crisis-oriented. The Guidance also discusses that caring for individuals with disabilities is increasingly more common, as nearly one third of families have at least one family member with a disability, and most men and women who care for a relative with a disability are employed. Finally, women of color, particularly African American women, are disproportionately affected by these trends, as they are historically more likely to work outside the home.
How do these trends affect an employer’s Title VII obligations? One way is that negative stereotyping of employees with caregiving responsibilities may impede them from advancing in their careers. The decision maker who perceives that women with caregiving responsibilities are more committed to caregiving than to their jobs and are less competent may promote male employees over equally or more-qualified female employees, in violation of Title VII. Another impact is that male caregivers may face the opposite negative stereotype: that men are not as good at caregiving as women. Thus, an employer may deny male employees parental leave or other benefits routinely afforded their female counterparts, in violation of Title VII and, possibly, the Family Medical Leave Act. The Guidance points out that employment decisions based on such stereotypes violate the federal anti-discrimination statutes, even when the employer acts upon such stereotypes unconsciously or reflexively. As the U.S. Supreme Court articulated in 1989 in Price Waterhouse v. Hopkins, employers may not evaluate employees by assuming or insisting that they match the stereotype associated with their group.
The Guidance goes on to lay out circumstances under which the EEOC may find discrimination against five categories of workers with caregiving responsibilities: (1) female caregivers; (2) pregnant workers; (3) male caregivers; (4) women of color; and (5) workers caring for an individual with a disability. The examples provided highlight how nuanced the evidentiary inquiry can be. The Guidance points out that, even where an employer does not discriminate broadly against all its female employees, the employer nonetheless violates Title VII where it discriminates against working mothers. Such discrimination occurs where an employer treats working fathers more favorably than working mothers; makes employment decisions based on the assumption that future childcare responsibilities will make female employees less dependable than male employees; or allows gender stereotypes to affect perceptions of working mothers’ competence. These stereotypes sometimes place working mothers in the “double bind” of being perceived as “bad mothers” for devoting time to their careers, and “bad workers” for devoting time to their families.
Gender stereotypes can also result in unlawful discrimination against pregnant workers. Employers can violate Title VII by making assumptions about pregnancy, such as about the pregnant worker’s commitment to her job, or ability to perform certain physical tasks. Again, even where an employer does not discriminate against women generally, making an employment decision on stereotypical assumptions about a pregnant worker’s abilities is unlawful, even where the employer is acting paternalistically in the employee’s “best interests.” Thus, for example, a policy that automatically places a pregnant employee on a leave of absence, or on light duty, may be unlawful. Employers should avoid such blanket policies, and should instead be guided by the employee and her doctor in determining whether a leave of absence or light duty is needed.
Male caregivers can also be subjected to negative gender stereotypes. Stereotypes of men as “bread winners” can lead to the perception that a man who works part-time is neither a good employee nor a good father. These employees may be denied opportunities that the employer provides to working women, or may be subjected to harassment. Some employers have denied or discouraged male employees’ requests for leave for childcare purposes even while granting such requests made by females. The Guidance points out, however, that not all gender-based leave policies are unlawful. Specifically, Title VII permits employers to provide pregnancy disability leave to female employees only, for the period that the employee is incapacitated because of pregnancy, childbirth, and related medical conditions. However, employers may not treat either sex more favorably with respect to other kinds of leave. Employers should ensure that their non-pregnancy-related leave of absence policies do not treat either gender more favorably.
The Guidance points out that women of color may experience “intersectional” discrimination that is specifically directed toward women of a particular race or ethnicity, rather than toward all women. This may result, for example, in less favorable treatment of an African American working mother than her Caucasian counterpart.
Finally, the Guidance reminds employers that, in addition to prohibiting discrimination against a qualified individual with a disability, the Americans with Disabilities Act (ADA) prohibits discrimination against a worker who has a relationship or association with a disabled individual. As with other caregiving workers, employers may not treat a worker less favorably based on stereotypical assumptions about the worker’s ability to perform job duties satisfactorily while also providing care to an individual with a disability. For example, an employer may not refuse to hire a job applicant whose wife has a disability because the employer assumes that the applicant would use leave more frequently.
So what is the takeaway for employers? The best way to avoid claims of discrimination is to make employment decisions based on the employee’s performance or conduct, not based on the employee’s status. Employers should ensure that their hiring, discipline, promotion and leave policies do not reflect antiquated, stereotyped notions of gender and caregiving responsibilities. More importantly, managers and supervisors must be trained routinely that they must not let stereotypes influence their management decisions.
The above is a summary of the EEOC’s Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. The complete text of the Enforcement Guidance can be found here.