Gender Discrimination Claims After Ledbetter

While the Guidance applies to caregivers of both genders, the EEOC recognizes that caregiving functions disproportionately fall on women, noting that the Guidance was needed, in part, because of changing demographics including women's increased contributions in the workforce. For example, mothers of young children are almost twice as likely to work today compared with 30 years ago. An aging Baby Boomer generation that is living longer than previous generations also has increased the caregiving functions many employees provide in addition to working. In this changing world, employers must be sensitive to these employee needs in order to remain competitive and avoid violating employment discrimination laws.

The Enforcement Guidance implicates many practical considerations for employers. For example, employers should be cautious not to discriminate based on gender-based beliefs about caregivers when determining employee promotions, bonuses, benefits, and hiring decisions. Making employment decisions based on actual work performance is generally permissible even if an employee's unsatisfactory work performance is attributable to caregiving responsibilities. When making any employment decision, then, employers must be vigilant in documenting the legitimate reasons for the action taken because the EEOC will scrutinize the extent to which adverse employment decisions were made based on actual performance. As a result, employers should be particularly careful in documenting poor performance before taking adverse action against pregnant employees or employees with caregiving responsibilities. Employers also should not base decisions on assumptions ' such as expecting that an employee with children would not want to work on a high profile, time-consuming project ' because these assumptions can be used to show discriminatory intent in a subsequent Title VII action.

Parity between male and female caregiver employees also is crucial. If employers ask female applicants if they are married, they must ask male applicants the same question. If employers provide parental leave, such leave must be provided in an equal manner to men and women. Similarly, employers should ensure they treat pregnant employees like other employees and employers should distinguish carefully between pregnancy-related leave and other forms of leave to ensure that any leave provided to women is limited only to when women are incapacitated by pregnancy or childbirth. Employers should treat working mothers and working fathers in a similar favorable or unfavorable manner compared with childless workers to avoid discriminating based on gender in violation of Title VII. Employers should review their employment policies and enforcement procedures to ensure that they treat male and female employees in the same manner.

As employees increasingly provide caretaking functions outside of work, offering flexible working schedules and time off for caretaking responsibilities become sought-after benefits for employees who seek a more flexible work-life balance. Accommodating caretaking responsibilities, then, could prove to be an advantageous business decision as more employees will become caretakers as the Baby Boomer generation ages. Further, while more women currently provide caretaking responsibilities resulting in gender discrimination concerns, as men increasingly seek a work life balance these policies become vital for all employees wanting to spend more time caring for children or other family members.

Even if an employer has not violated the EEOC's Enforcement Guidance regarding caregivers, employers must be conscientious that they do not retaliate against a complaining employee. Employers are prohibited from retaliating against employees for exercising their rights under federal discriminations laws and, as the Enforcement Guidance makes clear, caregivers are protected by these statutes in certain circumstances. Because Title VII's enforcement depends upon employees willing to file complaints, courts give the anti-retaliation provision broad protection. Burlington N. & Santa Fe Railway Co. v. White, 126 S. Ct., 2405, 2414 (2006). Thus, employers may not actually discriminate against caretakers based on gender, but still could violate Title VII's anti-retaliation prohibition. Employers should avoid taking adverse employment actions after a caretaker complains of dis

Recent action taken by the Equal Employment Opportunity Commission ('EEOC') and the U.S. Supreme Court show that gender discrimination issues continue to influence employee relations. On May 23, 2007, the EEOC issued Enforcement Guidance regarding the 'Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.' While the Enforcement Guidance does not create a new class of employees protected by Title VII of the 1964 Civil Rights Act ('Title VII') or the Americans with Disabilities Act ('ADA'), it calls attention to the pitfalls of potential discrimination against employees who are also caregivers to children, parents, or disabled family members. A few days later, on May 29, 2007, the U.S. Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Co., Inc. , 127 S. Ct. 2162 (2007), clarifying the statute of limitations period in which an aggrieved employee may bring a disparate treatment claim for gender-based pay discrimination. Both the Enforcement Guidance and the Ledbetter decision have practical consequences for employers, especially in light of the increasing number of women in the workforce and changing societal gender roles and irrespective of the success or failure of Congressional efforts to undo the Ledbetter decision. The New York Times reports that the 'gender revolution' is developing into a 'gender convergence' as men as women share increasing similarities in their desire to balance work and a home life. Patricia Cohen: Signs of D'tente in the Battle Between Venus and Mars. N.Y. Times, May 31, 2007, at A13. Various social studies show that the values of men and women now meet in the middle with both sharing a mutual desire to have a career and raise children. Id. As a result, cutting-edge employers are providing benefits like parental leave or flexible working times to retain top talent. See Id. In that quest, however, employers must be cautious not to run afoul of labor and employment laws even when an employer acts with the best of intentions.

EEOC Guidance

The EEOC's Enforcement Guidance recognizes the relatively recent workplace phenomenon defining the current generation of employees who, outside of work, also care for children, aging parents, or both. In January 2006, 22.4 million American households (approximately one in four American families) cared for someone over 50 years old. See www.4woman.gov/faq/caregiver.htm. At that time, this number was expected to reach 39 million American families by 2007. 75% of these caregivers are women and two-thirds of caregivers have jobs outside of caretaking. Id. The Guidance illuminates possible Title VII or ADA violations when employers take action based on beliefs about mothers, association with a disabled person, or caregivers because of gender-based assumptions or speculation as opposed to actual work performance.

While the Guidance applies to caregivers of both genders, the EEOC recognizes that caregiving functions disproportionately fall on women, noting that the Guidance was needed, in part, because of changing demographics including women's increased contributions in the workforce. For example, mothers of young children are almost twice as likely to work today compared with 30 years ago. An aging Baby Boomer generation that is living longer than previous generations also has increased the caregiving functions many employees provide in addition to working. In this changing world, employers must be sensitive to these employee needs in order to remain competitive and avoid violating employment discrimination laws.

The Enforcement Guidance implicates many practical considerations for employers. For example, employers should be cautious not to discriminate based on gender-based beliefs about caregivers when determining employee promotions, bonuses, benefits, and hiring decisions. Making employment decisions based on actual work performance is generally permissible even if an employee's unsatisfactory work performance is attributable to caregiving responsibilities. When making any employment decision, then, employers must be vigilant in documenting the legitimate reasons for the action taken because the EEOC will scrutinize the extent to which adverse employment decisions were made based on actual performance. As a result, employers should be particularly careful in documenting poor performance before taking adverse action against pregnant employees or employees with caregiving responsibilities. Employers also should not base decisions on assumptions ' such as expecting that an employee with children would not want to work on a high profile, time-consuming project ' because these assumptions can be used to show discriminatory intent in a subsequent Title VII action.

Parity between male and female caregiver employees also is crucial. If employers ask female applicants if they are married, they must ask male applicants the same question. If employers provide parental leave, such leave must be provided in an equal manner to men and women. Similarly, employers should ensure they treat pregnant employees like other employees and employers should distinguish carefully between pregnancy-related leave and other forms of leave to ensure that any leave provided to women is limited only to when women are incapacitated by pregnancy or childbirth. Employers should treat working mothers and working fathers in a similar favorable or unfavorable manner compared with childless workers to avoid discriminating based on gender in violation of Title VII. Employers should review their employment policies and enforcement procedures to ensure that they treat male and female employees in the same manner.

As employees increasingly provide caretaking functions outside of work, offering flexible working schedules and time off for caretaking responsibilities become sought-after benefits for employees who seek a more flexible work-life balance. Accommodating caretaking responsibilities, then, could prove to be an advantageous business decision as more employees will become caretakers as the Baby Boomer generation ages. Further, while more women currently provide caretaking responsibilities resulting in gender discrimination concerns, as men increasingly seek a work life balance these policies become vital for all employees wanting to spend more time caring for children or other family members.

Even if an employer has not violated the EEOC's Enforcement Guidance regarding caregivers, employers must be conscientious that they do not retaliate against a complaining employee. Employers are prohibited from retaliating against employees for exercising their rights under federal discriminations laws and, as the Enforcement Guidance makes clear, caregivers are protected by these statutes in certain circumstances. Because Title VII's enforcement depends upon employees willing to file complaints, courts give the anti-retaliation provision broad protection. Burlington N. & Santa Fe Railway Co. v. White, 126 S. Ct., 2405, 2414 (2006). Thus, employers may not actually discriminate against caretakers based on gender, but still could violate Title VII's anti-retaliation prohibition. Employers should avoid taking adverse employment actions after a caretaker complains of dis