EEOC Issues Best Practices To Avoid Caregiver Discrimination

(Published May 4, 2009)

The Equal Employment Opportunity Commission (EEOC) recently issued a document highlighting the best practices for employers to avoid discriminating against workers with caregiving responsibilities.  Employer Best Practices for Workers with Caregiving Responsibilities supplements guidance the agency issued in 2007 that examines how federal anti-discrimination laws apply to caregivers, Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. While caregivers are not a protected class, stereotypes and assumptions about caregivers are often at the root of claims under Title VII, the Pregnancy Discrimination Act, the Family and Medical Leave Act, and the Americans with Disabilities Act.

"Today we take another step forward, articulating not just the bare minimum required to avoid unlawful discrimination, but also thinking broadly about the ways in which family-friendly workplace policies can improve workers' ability to balance caregiving responsibilities with work," said EEOC Acting Chairman Stuart J. Ishimaru.

In addition to issuing the best practices, the EEOC heard from expert panelists who discussed the importance of implementing or maintaining caregiver-friendly workplace policies, particularly during an economic recession.

Heather Boushey, Senior Economist, Center for American Progress Action Fund, observed: "The poor economy and lack of job creation means that families will need to ensure that they do what they can to keep parents working. The impact of family responsibility discrimination on family well-being is potentially more devastating than ever before."

The best practices are divided into three categories: 1) general; 2) recruitment, hiring, and promotion; and 3) terms, conditions, and privileges of employment. Here's a brief summary of the recommendations contained in each. Note: Best practices are intended to go beyond federal non-discrimination requirements and are designed to remove barriers to equal employment.

I. General 

• Train managers on the legal obligations that may impact decisions about how they treat workers with caregiver responsibilities.
  
  
• Develop, disseminate, and enforce a strong equal employment opportunity policy that clearly addresses the types of conduct that might constitute unlawful discrimination against caregivers.
  
  
• Ensure that managers at all levels are aware of, and comply with, the organization's work-life policies.
  
  
• Respond to complaints of caregiver discrimination efficiently and effectively.

II. Recruitment, Hiring, And Promotion

• Focus on the individual's qualifications for the job in question. Do not ask questions about their children, plans to start a family, pregnancy, or other caregiving-related issues.
  
  
• Develop specific, job-related qualification standards for each position that reflect the duties, functions, and competencies of the position, and make sure these standards are consistently applied when choosing among candidates.
  
  
• Ensure that job openings and promotions are communicated to all eligible employees regardless of caregiving responsibilities.
  
  
• Implement recruitment practices that target individuals with caregiving responsibilities who are looking to enter or return to the workforce.
  

Failing to give applicants or employees a fair shake at open positions because of known or suspected caregiver responsibilties could get your organization slapped with a sex discrimination claim.

Case in point: Two months before a promotion decision, one of the decision-makers sent an e-mail to an employee exclaiming: "Oh my – I did not know you had triplets. Bless you!" In addition to six-year-old triplets, the employee also had an 11-year-old son.

During the promotion interview, another decision-maker was unhappy with one of the employee's replies to a question about how she would respond if a subordinate failed to meet a deadline and replied: "You are a mother. Would you let you kids off the hook that easy if they made a mess in their room? Would you clean it or hold them accountable?"

Upon informing the employee that she did not get the promotion, the decision-maker who had sent the e-mail explained: "It was nothing you did or didn't do. It was just that...you have the kids and you have a lot on your plate right now....If the three [promotion] interviewers were in your position, they would feel overwhelmed."

The employee alleged that she was denied the promotion based on the sex-based stereotype that mothers with young children neglect their work duties. Incidentally, this couldn't have been further from the truth for the employee, who earned a 4.40 out of a possible 5 on her most recent performance evaluation and possessed significantly more experience than the individual who was promoted.

A district court sided with the employer and dismissed her claim, but the 1st Circuit tossed it back into play. Said the appeals court: Given the common stereotype about the job performance of women with children and given the surrounding circumstantial evidence presented by the employee, we believe that a reasonable jury could find that the employer would not have denied a promotion to a similarly situated man because he had "too much on his plate" and would be "overwhelmed" by the new job, given "the kids." (Chadwick v. Wellpoint, Inc., 1st Cir., No. 08-1685, 2009)

III. Terms, Conditions, And Privileges Of Employment 

• Monitor compensation practices and performance appraisal systems for patterns of potential discrimination against caregivers.
  
  
• Review workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure that they are necessary to business operations. Make required overtime as family-friendly as possible.
  
  
• Encourage employees to request flexible work arrangements.
  
  
• Post employee schedules as early as possible for positions that have changing work schedules so that employees can address personal responsibilities.

Related Topic(s): Discrimination/PDA - Pregnancy Discrimination Act, Discrimination/Sex Discrimination