A Primer on EEOC Guidelines on Caregivers

The 21st-Century workplace is not your parents' workplace. Fewer women are choosing, or are economically permitted, to stay home after they have children and, as a result, there are significantly more women working, full-time or part-time. At the same time, studies indicate that the amount of time men spend on childcare has tripled since 1965. A natural consequence of the spike in the number of two-income families in the last 30 years is that men are now shouldering more child-rearing obligations. In addition, many employees are assuming caregiver responsibilities for their elderly parents or disabled family members. Consequently, the pool of employees who bear some caregiver responsibilities and thus are potentially entitled to family responsibilities discrimination ('FRD') protection is enormous and crosses gender, racial, economic and generational lines.

It is, therefore, not surprising that FRD has become one of the most important and difficult issues facing employers. How do employers retain valuable employees, who have significant family responsibilities? Equally perplexing, how do employers fairly and effectively manage non-performers who also happen to act as primary caregivers? These complicated dilemmas can easily turn into legal exposure when employers make stereotypical assumptions about which gender is best suited for caregiving, the commitment level employees should have before and after they have children or the accommodations or restrictions necessary when an employee assumes responsibilities at home. Employers need an attack plan and must begin to think creatively to address every situation that arises in the workplace to protect themselves from increasingly popular FRD claims.

Enforcement Guidance

Although the federal laws prohibiting employment discrimination do not specifically prohibit caregiver discrimination, the Guidelines issued by the EEOC in May 2007 outline those circumstances under which an employer's disparate treatment of employees due to family responsibilities might violate existing law. The EEOC specified that the Guidelines do not create a new protected claim for 'family responsibilities,' but rather reflect an endeavor to assist its investigators, as well as employers, unions and potential charging parties to assess whether employment decisions affecting caregivers constitute unlawful discrimination. Nevertheless, the Guidelines have raised questions regarding what constitutes FRD and whether they have actually expanded an employer's obligation to prohibit workplace discrimination.

FRD Discrimination

According to the EEOC, it released the Guidelines in response to a rise in the number of claims filed by male and female employees alleging discrimination or adverse treatment resulting from their attempt to juggle work, childcare, and the care of parents or disabled family members. The most common FRD charge filed by employers alleges discriminatory conduct based on employer stereotyping of employees with family responsibilities. For example, a female employee complains that her employer has assumed (often in advance of any change in performance), that her caregiving will interfere with or weaken her commitment to her job. Another common example is a charge filed by a pregnant employee or one with small children who contends that her manager has passed her over or failed to seriously consider her, for promotion or choice assignments, because she has, or soon will have, family responsibilities while her male counterparts with families are not similarly penalized. These examples support charges for FRD.

On the other hand, the EEOC noted that it has experienced a significant rise in charges filed by males who share childcare duties. Specifically, male employees are filing a record number of charges asserting that their employers have denied them leave or other benefits routinely afforded to female employees because their employers consider it inappropriate for men to assume caregiver responsibilities. Because this stereotyping unfairly calls into question the employee's commitment to his job and can negatively impact his employer's decisions about promotions, assignments, compensation and benefits, it constitutes FRD.

The Guidelines identify several categories of FRD discrimination, all of which fit within the parameters of existing anti-discrimination laws and provide 20 examples of potential FRD charges to assist its investigators. These hypothetical situations are equally useful to employers that wish to anticipate and resolve FRD issues before they become EEOC charges.

Gender Discrimination

An employer's sex-based disparate treatment of an employee with caregiver responsibilities violates Title VII's prohibition against gender discrimination, but only if the employee proffers evidence that adverse action was based on the caregiver's gender. An employee can meet his or her burden by producing evidence typically sufficient to establish unlawful gender discrimination, such as derogatory comments questioning whether a female applicant with young children is capable of the job's challenges. Similarly, a female caregiver can state an FRD claim if she can establish that male co-workers with children or female co-workers without children receive more favorable treatment. It does not matter if both the employee receiving harsh treatment and the employee(s) receiving preferential treatment are women, a gender discrimination claim will lie if the adverse action is based on caregiver responsibilities.

Unlike traditional forms of discrimination, FRD is frequently rooted in sexual stereotyping as opposed to ill intent, e.g., a manager's assumption that a female employee with young children would prefer to leave early to care for her children rather than accept a project that would require long hours (and accelerate promotion). The EEOC characterizes this conduct as 'benevolent,' but unlawful, stereotyping, because it harms the employee's chances for career advancement. Conversely, while women with children may be patronized in the workplace, men who request accommodation because of childcare responsibilities are often castigated for availing themselves of female-themed policies, such as paternity, bonding or kin care leaves. To complicate matters, it makes little difference if the decision-maker (and thus discriminatory actor) is a member of the same gender. The range of potential wrongdoers presents unique challenges for employers attempting to guard against FRD.

Pregnancy Discrimination

The Guidelines reiterate Title VII's prohibition against pregnancy discrimination (e.g., placing an employee on involuntary unpaid leave until after her pregnancy), which warrant little attention. However, in addition to these more egregious instances, the Guidelines warn against more subtle forms of negative stereotyping, such as a male supervisor who penalizes an employee who works during her pregnancy or questions her commitment to motherhood based upon his belief that mothers should not work. Similarly, a supervisor (irrespective of gender) may question a pregnant employee's dedication in advance of any changes to her performance or schedule. This stereotyping is generally referred to as the 'maternal wall' and is replacing the glass ceiling as the most prevalent complaint of working women.

Race Discrimination

The Guidelines report that women of color are more likely to be raising children in a single family household or caring for extended family and are thus disproportionately impacted by family responsibilities. On this basis, women of color may assert claims for 'intersectional discrimination,' which is discriminatory conduct directed toward women of a particular race or ethnicity as opposed to all women.

Discrimination Under the ADA

The Guidelines address FRD claims under the ADA, which involve discriminatory treatment of an employee with family responsibilities for an individual with a disability. Under this category, an FRD claim may arise if an employer refuses to hire or promote an employee who is the primary caregiver for a disabled spouse for fear that the employee will not be able to put in the required hours for the position because it discriminates against the employee for association with a person with a disability.

Hostile Work Environment

Because those with familial responsibilities are not members of a protected class, to state a claim for FRD harassment, an employee must proffer evidence of offensive comments or conduct sufficient to constitute a hostile work environment on the basis of gender, race, disability or some other protected basis. As with all unlawful harassment, it is important for employers to readily identify a complaint process and to implement training and policies designed to educate supervisors and employees that harassment against caregivers or pregnant employees is prohibited. As discussed above, employers must be cognizant of sexual stereotypes to ensure that supervisors or co-workers do not negatively comment on a caregiver's loyalty to her job or family. For example, a manager who consistently criticizes an employee who has recently returned from maternity leave for arriving at work a few minutes late may be creating a hostile work environment if he or she does not also penalize other employees who are similarly tardy in arriving to work or returning from breaks.

Retaliation

An employer will be subject to a retaliation claim for taking adverse action against an employee who complains about unfair treatment on the basis of family responsibilities. Because FRD claims may not look like traditional discrimination claims, (e.g.. the decision-maker and employee may be the same gender), employees must carefully examine each complaint for FRD. The EEOC considers caregivers particularly vulnerable to unlawful retaliation and, as a result, much more likely to avoid using complaint procedures to avoid the slightest adverse action. Therefore, a minor change in work schedule or a one-time enforcement of a mandatory overtime policy might support a retaliation charge if applied in response to a caregiver complaint.

Next Month: How to Avoid FRD Claims.

Stacey McKee Knight, a member of this newsletter's Board of Editors, is a partner with Katten Muchin Rosenman LLP. She can be reached at [email protected]. Marjorie L. Wilkinson was a summer associate who will be joining the firm in the Fall.

The 21st-Century workplace is not your parents' workplace. Fewer women are choosing, or are economically permitted, to stay home after they have children and, as a result, there are significantly more women working, full-time or part-time. At the same time, studies indicate that the amount of time men spend on childcare has tripled since 1965. A natural consequence of the spike in the number of two-income families in the last 30 years is that men are now shouldering more child-rearing obligations. In addition, many employees are assuming caregiver responsibilities for their elderly parents or disabled family members. Consequently, the pool of employees who bear some caregiver responsibilities and thus are potentially entitled to family responsibilities discrimination ('FRD') protection is enormous and crosses gender, racial, economic and generational lines.

It is, therefore, not surprising that FRD has become one of the most important and difficult issues facing employers. How do employers retain valuable employees, who have significant family responsibilities? Equally perplexing, how do employers fairly and effectively manage non-performers who also happen to act as primary caregivers? These complicated dilemmas can easily turn into legal exposure when employers make stereotypical assumptions about which gender is best suited for caregiving, the commitment level employees should have before and after they have children or the accommodations or restrictions necessary when an employee assumes responsibilities at home. Employers need an attack plan and must begin to think creatively to address every situation that arises in the workplace to protect themselves from increasingly popular FRD claims.

Enforcement Guidance

Although the federal laws prohibiting employment discrimination do not specifically prohibit caregiver discrimination, the Guidelines issued by the EEOC in May 2007 outline those circumstances under which an employer's disparate treatment of employees due to family responsibilities might violate existing law. The EEOC specified that the Guidelines do not create a new protected claim for 'family responsibilities,' but rather reflect an endeavor to assist its investigators, as well as employers, unions and potential charging parties to assess whether employment decisions affecting caregivers constitute unlawful discrimination. Nevertheless, the Guidelines have raised questions regarding what constitutes FRD and whether they have actually expanded an employer's obligation to prohibit workplace discrimination.

FRD Discrimination

According to the EEOC, it released the Guidelines in response to a rise in the number of claims filed by male and female employees alleging discrimination or adverse treatment resulting from their attempt to juggle work, childcare, and the care of parents or disabled family members. The most common FRD charge filed by employers alleges discriminatory conduct based on employer stereotyping of employees with family responsibilities. For example, a female employee complains that her employer has assumed (often in advance of any change in performance), that her caregiving will interfere with or weaken her commitment to her job. Another common example is a charge filed by a pregnant employee or one with small children who contends that her manager has passed her over or failed to seriously consider her, for promotion or choice assignments, because she has, or soon will have, family responsibilities while her male counterparts with families are not similarly penalized. These examples support charges for FRD.

On the other hand, the EEOC noted that it has experienced a significant rise in charges filed by males who share childcare duties. Specifically, male employees are filing a record number of charges asserting that their employers have denied them leave or other benefits routinely afforded to female employees because their employers consider it inappropriate for men to assume caregiver responsibilities. Because this stereotyping unfairly calls into question the employee's commitment to his job and can negatively impact his employer's decisions about promotions, assignments, compensation and benefits, it constitutes FRD.

The Guidelines identify several categories of FRD discrimination, all of which fit within the parameters of existing anti-discrimination laws and provide 20 examples of potential FRD charges to assist its investigators. These hypothetical situations are equally useful to employers that wish to anticipate and resolve FRD issues before they become EEOC charges.

Gender Discrimination

An employer's sex-based disparate treatment of an employee with caregiver responsibilities violates Title VII's prohibition against gender discrimination, but only if the employee proffers evidence that adverse action was based on the caregiver's gender. An employee can meet his or her burden by producing evidence typically sufficient to establish unlawful gender discrimination, such as derogatory comments questioning whether a female applicant with young children is capable of the job's challenges. Similarly, a female caregiver can state an FRD claim if she can establish that male co-workers with children or female co-workers without children receive more favorable treatment. It does not matter if both the employee receiving harsh treatment and the employee(s) receiving preferential treatment are women, a gender discrimination claim will lie if the adverse action is based on caregiver responsibilities.

Unlike traditional forms of discrimination, FRD is frequently rooted in sexual stereotyping as opposed to ill intent, e.g., a manager's assumption that a female employee with young children would prefer to leave early to care for her children rather than accept a project that would require long hours (and accelerate promotion). The EEOC characterizes this conduct as 'benevolent,' but unlawful, stereotyping, because it harms the employee's chances for career advancement. Conversely, while women with children may be patronized in the workplace, men who request accommodation because of childcare responsibilities are often castigated for availing themselves of female-themed policies, such as paternity, bonding or kin care leaves. To complicate matters, it makes little difference if the decision-maker (and thus discriminatory actor) is a member of the same gender. The range of potential wrongdoers presents unique challenges for employers attempting to guard against FRD.

Pregnancy Discrimination

The Guidelines reiterate Title VII's prohibition against pregnancy discrimination (e.g., placing an employee on involuntary unpaid leave until after her pregnancy), which warrant little attention. However, in addition to these more egregious instances, the Guidelines warn against more subtle forms of negative stereotyping, such as a male supervisor who penalizes an employee who works during her pregnancy or questions her commitment to motherhood based upon his belief that mothers should not work. Similarly, a supervisor (irrespective of gender) may question a pregnant employee's dedication in advance of any changes to her performance or schedule. This stereotyping is generally referred to as the 'maternal wall' and is replacing the glass ceiling as the most prevalent complaint of working women.

Race Discrimination

The Guidelines report that women of color are more likely to be raising children in a single family household or caring for extended family and are thus disproportionately impacted by family responsibilities. On this basis, women of color may assert claims for 'intersectional discrimination,' which is discriminatory conduct directed toward women of a particular race or ethnicity as opposed to all women.

Discrimination Under the ADA

The Guidelines address FRD claims under the ADA, which involve discriminatory treatment of an employee with family responsibilities for an individual with a disability. Under this category, an FRD claim may arise if an employer refuses to hire or promote an employee who is the primary caregiver for a disabled spouse for fear that the employee will not be able to put in the required hours for the position because it discriminates against the employee for association with a person with a disability.

Hostile Work Environment

Because those with familial responsibilities are not members of a protected class, to state a claim for FRD harassment, an employee must proffer evidence of offensive comments or conduct sufficient to constitute a hostile work environment on the basis of gender, race, disability or some other protected basis. As with all unlawful harassment, it is important for employers to readily identify a complaint process and to implement training and policies designed to educate supervisors and employees that harassment against caregivers or pregnant employees is prohibited. As discussed above, employers must be cognizant of sexual stereotypes to ensure that supervisors or co-workers do not negatively comment on a caregiver's loyalty to her job or family. For example, a manager who consistently criticizes an employee who has recently returned from maternity leave for arriving at work a few minutes late may be creating a hostile work environment if he or she does not also penalize other employees who are similarly tardy in arriving to work or returning from breaks.

Retaliation

An employer will be subject to a retaliation claim for taking adverse action against an employee who complains about unfair treatment on the basis of family responsibilities. Because FRD claims may not look like traditional discrimination claims, (e.g.. the decision-maker and employee may be the same gender), employees must carefully examine each complaint for FRD. The EEOC considers caregivers particularly vulnerable to unlawful retaliation and, as a result, much more likely to avoid using complaint procedures to avoid the slightest adverse action. Therefore, a minor change in work schedule or a one-time enforcement of a mandatory overtime policy might support a retaliation charge if applied in response to a caregiver complaint.

Next Month: How to Avoid FRD Claims.

Stacey McKee Knight, a member of this newsletter's Board of Editors, is a partner with Katten Muchin Rosenman LLP. She can be reached at [email protected]. Marjorie L. Wilkinson was a summer associate who will be joining the firm in the Fall.