June 19, 2007
Author: Francis Alvarez
Organization: Jackson Lewis LLP
Although no federal law specifically prohibits discrimination against caregivers, the Equal Employment Opportunity Commission in its newly issued Enforcement Guidance entitled, "Unlawful Disparate Treatment of Workers with Caregiving Responsibilities," addresses in detail the circumstances in which discrimination against caregivers may violate Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act and outlines how the EEOC will approach the investigation of charges brought by caregivers.
According to the EEOC, the guidance is "not intended to create a new protected category;" nevertheless, it may foster charges by persons with caregiving responsibilities, for it illustrates with numerous examples how stereotyping, assumptions regarding caregivers' work performance or dedication, and insensitive and in appropriate remarks can give rise to disparate treatment or harassment claims.
The guidance includes the following topics: unlawful disparate treatment of caregivers, pregnancy discrimination, discrimination against male caregivers and women of color, caregiver stereotyping under the ADA, hostile work environment and retaliation. Each topic is briefly discussed below.
Sex-Based Disparate Treatment
This section of the guidance, by far the largest, reviews the types of evidence the EEOC may examine in investigating charges involving caregivers and discusses gender-based disparate treatment claims, stereotyping and mixed motive charges. Like other discrimination claims, sex discrimination claims involving caregivers may be proven by using direct and indirect evidence. Such evidence may include: that the employer asked female applicants, but not male applicants, whether they were married or had young children, or about their childcare and other caregiving responsibilities; that decision-makers or other employer officials made stereotypical or derogatory comments about pregnant workers or about working mothers or other female caregivers; that the employer began subjecting the charging party or other women to less favorable treatment soon after it became aware that they were pregnant or assumed caregiving responsibilities; or that the employer steered or assigned women with caregiving responsibilities to less prestigious or lower-paid positions. The presence or absence of any particular kind of evidence, including comparative evidence, is not dispositive.
The guidance states that sex discrimination against working mothers is prohibited by Title VII, even if the employer does not discriminate against childless women. Title VII also prohibits employers from treating female workers less favorably than males based merely on an assumption that female workers will assume caretaking responsibilities or that caretaking responsibilities will interfere with the performance of female workers.
The guidance discusses "benevolent" (but still unlawful) stereotyping, i.e., where an employer acts without consideration of the employee's wishes in what it perceives to be the employee's best interest. For example, an employer might assume that a working mother would not want to relocate to another city, even if it would mean a promotion. Such an assumption, even if well-intentioned, may violate Title VII.
Of course, negative stereotyping also may violate Title VII. For example, once female workers have children, they may be perceived by employers as being less capable and skilled than their childless female or male counterparts. The guidance alerts investigators to be particularly attentive to changes in an employer's assessment of a worker's performance that arise after a worker becomes pregnant or assumes caregiving responsibilities and that are not supported by specific, objective criteria.
As in other mixed motive cases, the guidance notes that an employer violates Title VII if gender is a motivating factor in the challenged employment decision, regardless of whether the employer was also motivated by legitimate business reasons. However, when an employer shows that it would have taken the same action even absent the discriminatory motive, the complaining employee would not be entitled to reinstatement, back pay or damages.
The guidance states that employers may violate Title VII by making assumptions about pregnancy, the commitment of pregnant workers, pregnant workers' ability to perform certain physical tasks, or the effect of pregnancy on an employee's job performance. Employers should not make pregnancy-related inquiries, and the EEOC will consider such inquiries as evidence of pregnancy discrimination if an employer subsequently subjects a pregnant worker to an adverse employment action. Employers may not treat a pregnant worker who is temporarily unable to perform some of her job duties because of pregnancy less favorably than workers whose job performance is similarly restricted because of conditions other than pregnancy.
Discrimination Against Male Caregivers and Women of Color
The guidance notes that assumptions about male caregivers may cause employers to deny male employees opportunities that have been provided to working women. For example, some employers have denied male employees' requests for leave for childcare purposes even while granting female employees' similar requests. Such conduct may violate Title VII.
The guidance also points out that women of color who are caregivers may face multiple types of discrimination. For example, a Latina working mother might be subjected to discrimination based on stereotypical notions about working mothers and hostility toward Latinos. Women of color also may be subjected to "intersectional discrimination"—which is specifically directed toward women of a particular race or ethnicity, rather than toward all women. This may result in, for example, less favorable treatment of an African-American working mother than her White counterpart.
Stereotyping and the ADA
The guidance states that employers may not treat a worker less favorably based on stereotypical assumptions about the worker's ability to perform job duties satisfactorily while 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 need frequent leave due to his family caregiving responsibilities.
Hostile Work Environment Harassment
The same legal standards that apply to other forms of harassment prohibited by Title VII, the ADA, and other anti-discrimination laws also apply to unlawful forms of harassment directed at caregivers or pregnant workers. Thus, employers may be liable if workers with caregiving responsibilities are subjected to harassment because of race, sex (including pregnancy), association with an individual with a disability or another protected characteristic and the conduct is sufficiently severe or pervasive to create a hostile work environment.
The anti-retaliation provisions under Title VII, the ADA and other anti-discrimination laws protect individuals against conduct that would be reasonably likely to deter someone from engaging in protected activity. The guidance notes that caregivers may be vulnerable to unlawful retaliation because of the challenges they face in balancing work and family responsibilities. Thus, a retaliatory schedule change or any other act that would be reasonably likely to deter a working mother or other caregiver from engaging in protected activity would be prohibited.
This enforcement guidance reveals how the EEOC will view certain situations relating to workers with caregiving responsibilities when investigating charges of discrimination. Employers should examine their policies and practices to ensure that only non-discriminatory criteria are considered in hiring, promotional and termination decisions. All performance evaluations must be based on documented, objective criteria and observations.
Affected employers should distinguish between pregnancy-related leave and other forms of leave, ensuring that any leave specifically provided to women alone is limited to the period that a woman is incapacitated by pregnancy or childbirth. When reviewing requests for leaves of absence, employers should monitor the types and lengths of leaves of absence that are approved to ensure that they do not have a disparate impact on caregivers.
Employers also should consider revising their anti-harassment policies to include examples of unlawful harassment directed at caregivers. Employers should take complaints from caregivers regarding possible harassment as seriously as they take other harassment complaints, investigate the matter and take appropriate remedial action.
Employers should train their supervisors regarding gender discrimination with a particular emphasis on stereotyping and harassment, so that supervisors understand that they should not consideration childcare or other family care responsibilities in employment decisions. Employers also should train their supervisors regarding retaliation and how, for example, unfavorable scheduling changes affecting caregivers could give rise to retaliation claims.
Our Management Training Practice Group provides training in all workplace law issues including those relating to this EEOC enforcement guidance.
© 2007 Jackson Lewis LLP. Reprinted with permission. Originally published at www.jacksonlewis.com. Jackson Lewis LLP is a national workplace law firm with offices nationwide.
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