Employees who are also caregivers--what gives?

WORKPLACE demographics have been changing, bringing more employees with caregiving responsibilities. (1) Not only has the number of women in the workforce increased, but so has the number of working parents and others with caregiving responsibilities. In response to this changing demographic and the rising number of discrimination lawsuits brought by caregivers, the Equal Employment Opportunity Commission (EEOC) issued guidance on May 23, 2007, aptly titled, "Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities" ("EEOC Guidance").

Although federal laws do not prohibit discrimination against caregivers per se, there are circumstances in which employees face workplace discrimination due to their family caregiving responsibilities. (2) These claims are generally referred to as family responsibilities discrimination ("FRD"). These claims are not a new protected category, but rather, illustrate ways in which stereotyping or other forms of disparate treatment may violate federal laws.

Most FRD claims are brought under Title VII, but others have been made under the Family and Medical Leave Act, the Pregnancy Disability Act, the Americans with Disabilities Act, and the Equal Pay Act, as well as comparable state laws. Caregiving responsibilities are not limited to childcare, and may include caregiving to the elderly and the disabled of all ages. Those receiving care include parents, spouses, children, grandchildren and other family members. Although women have a disproportionate share of family caregiving, men's role in caregiving is increasing.

What types of conduct may be a violation of the law?

If you only take away one thing from this article, it should be this: "the antidiscrimination laws entitle individuals to be evaluated as individuals rather than as members of groups having certain average characteristics." (3) Not only does disparate treatment violate the law in many cases, gender stereotyping can violate federal antidiscrimination statutes. For example, if an employer reflexively refuses to promote female employees because it perceives them as more committed to caregiving than to their jobs and less competent (without regard to how caregiving affects their job performance), it may be violating the law. On the flip side, an employer that stereotypically views men as poor caregivers may violate the law if it refuses to grant men parental leave or other benefits routinely given to female employees.

Sex-based disparate treatment of female caregivers is also discrimination. That is, failing to treat a female employee with a child as well as employees of the same sex who do not have children and employees of the opposite sex with children. This theory has been used to prove different types of employer actions are discriminatory including, termination, failure to promote, failure to enact gender-neutral and caregiver-friendly policies.

What evidence is most often used to support a claim? In many cases, employees use disparaging comments made by their employers or supervisors regarding their care-giving role. Other relevant evidence may include (but is not limited to) whether female applicants (but not male applicants) are asked whether they are married or have children, or about their childcare and caregiving responsibilities; whether pregnant women are subject to less favorable treatment; whether employees receive less favorable treatment after assuming caregiving responsibilities despite no decline in work performance; whether female employees without children receive more favorable treatment than females with caregiving responsibilities; whether male employees with caregiving responsibilities receive more favorable treatment than female employees; and whether the employer deviated from its policy when it took an employment action. (5)

Examples of Discrimination

Employment decisions that discriminate against employees with caregiving responsibilities are also prohibited if they are based on sex or another protected characteristic, regardless of whether the employer discriminates more broadly against all members of the protected class. (4) For example, sex discrimination against working mothers is prohibited by Title VII even if the employer does not discriminate against childless women. Thus, an employer cannot hire men with preschool age children but refuse to hire qualified women with preschool age children. Title VII does not prohibit discrimination based solely on parental or other caregiver status, so an employer does not generally violate Title VII if, for example, it treats working mothers and working fathers in a similar unfavorable (or favorable) manner as compared to childless workers.

Another example of discrimination is an employer that treats female employees less favorably merely on the gender-based assumption that a female employee will assume caretaking responsibilities or that a female employee's caretaking responsibilities will interfere with her work performance. Because stereotypes that female caregivers should not, will not, or cannot be committed to their jobs are sex-based, employment decisions based on such stereotypes violate federal law.

Employers should not use gender-based assumptions about future caregiving responsibilities. For example, an employer, when interviewing candidates for a position, may not consider whether a female applicant's future plans to start a family are compatible with its fast-paced business environment. Nor may an employer make stereotypical assumptions that women (including those who work part-time or on a flex-time schedule, or have taken advantage of leave policies) with young children will (or should) not work long hours or are less committed to their jobs than they were before they had children.

Another example is a female employee who takes advantage of an employer's leave policy, returns to work, but is denied a promotion, not because of a decline in work performance, but as "punishment" for taking leave. A well-meaning employer can also violate the law by assuming that a new mother would not want to take a promotion that requires relocating to another state. Thus, decisions based on sex stereotyping are a violation even if they are well-intentioned and not made with ill intent.

In yet another permutation, an employer may not deny a promotion based on a stereotype of how a mother should act. For example, an employer could not refuse to promote an otherwise qualified female employee for a position that required extensive traveling on the stereotype that women with children should not be away from home.

So far, we've focused only on discrimination against female caregivers. However, there have been reported cases brought by male caregivers. For example, employers have been found in violation of the law when they have denied male employees' requests for leave for childcare purposes (unrelated to pregnancy) but granted female employees' similar requests. (6) Another example is provided by an employer that denies a request by a male employee for a flex-time schedule so that he can help his wife care for his disabled child, but then grants a request by a female employee who just gave birth to a child with special needs. This example could potentially violate two laws--Title VII and the Americans with Disabilities Act.

Finally, consider the case of a male employee whose wife was recently diagnosed with an aggressive form of cancer. His supervisor began removing the employee from long-term projects, concerned that the male employee would not be able to meet team deadlines during the wife's treatment and/or decline.

Conclusion

These examples should not be taken to mean that caregivers are always entitled to accommodations or protections that the law does not require. However, these examples should serve as helpful reminders that stereotyping and disparate treatment based on gender and care-giving responsibilities should not be permitted. Nor should applicants be asked whether they have children, or about their childcare or other care-giving responsibilities. Evaluations of performance should be based on just that--performance--and not on whether an employee has given birth or used leave to care for another individual. Finally, in making decisions about promotions, employers should focus on the qualifications and performance of the individual, rather than on whether he or she has caregiving responsibilities.

About the Author: Heidi Abegg is an associate at Webster, Chamberlain & Bean--a Washington, DC-based law firm. She can be reached at habegg@wc-b.com.

Footnotes

1. The information provided herein is for general informational purposes only and is not intended to constitute legal advice.

2. EEOC Guidance at 1.

3. Lust v. Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004).

4. EEOC Guidance at 3.

5. The law permits employers to provide women only with leave for the period of time that they are incapacitated because of pregnancy, childbirth and other medical conditions arising out of pregnancy.