Consider this scenario:


Situations similar to the one above are not uncommon in today’s workplace, where both employers and employees struggle to strike the appropriate balance between the demands of work and family responsibilities. Given the variety of laws that protect employees’ rights in this area, it is imperative that employers be aware of the possible consequences of failing to properly address or even ignoring requests for leave by caregivers. The frequency with which caregivers are filing claims for unlawful disparate treatment reflects the need for employer vigilance in this continuously evolving area of employment law.

Over the past several decades, workplace demographics have changed significantly, the most prominent of which is the increased participation of women in the labor force. But another less noticeable trend has been the shifting roles of males with respect to caregiver responsibilities: Increasingly, male employees are requesting leave time to attend to newborn children or sick relatives. Because these changes have increased the potential for discrimination against working caregivers, the U.S. Equal Employment Opportunity Commission (EEOC) has set forth new guidance on issues relating to discrimination against workers with caregiver responsibilities. This guidance is designed to assist investigators and employers in assessing the types of employment decisions or circumstances that might amount to discrimination based on an employee’s role as a caregiver. Although the federal equal employment opportunity laws do not prohibit caregiver discrimination per se, investigations have revealed instances in which discrimination against workers with caregiver responsibilities has constituted unlawful disparate treatment. The EEOC’s guidance in this area is intended not to create newly protected classes of employees but rather to prevent discrimination against employees trying to balance family and work responsibilities, discrimination that may be in violation of such federal laws as Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA) of 1990.

What types of situations might rise to the level of unlawful disparate treatment? Commissioner Stuart J. Ishimaru of the EEOC has stated: “An employer may violate Title VII when it takes action or limits opportunities for employees because of beliefs that the employer has about mothers and caretakers that are linked to sex.” In its guidance, the EEOC has identified various types of caregiver discrimination, often resulting from gender-based stereotypes.

Let’s start with discrimination based on common stereotypes of working mothers, including:

• Female caregivers will not or cannot be fully committed to their jobs.
• Women with young children cannot be asked to work long hours.
• Pregnant women will miss work frequently and will not be able to handle the often stressful demands of the workplace.
• Working mothers will not be willing to travel or relocate for business purposes.

The EEOC explains that because these stereotypes are based on sex or pregnancy status, any employment decisions based on such stereotypes may violate Title VII. To illustrate, if an employer chooses a childless woman for an executive training program and denies the opportunity to a mother with better performance appraisals, the EEOC may deem the employer’s action as constituting sex-based discrimination and thus a violation of Title VII.

Employers must also be mindful of the potential for discrimination with respect to future caregiver responsibilities. Consider the following example found in the EEOC’s guidance. A hiring manager notices a wedding ring on the hand of a young female job applicant, Patricia, whom he is interviewing. He then asks her how many children she has; she explains that she has no children yet but intends to, once she and her husband have gotten their careers underway. Instead of discussing the young woman’s qualifications, the hiring manager asks her how she will balance work and childcare responsibilities. She explains that she will share these responsibilities with her husband. A week after the interview, she is notified that another candidate was chosen. Believing she has been discriminated against on the basis of sex, she files a charge with the EEOC. In investigating the claim, the EEOC investigator finds that the position was reposted because, the employer claims, none of the candidates interviewed in the first round had sufficient experience. However, the investigation shows that Patricia easily met the requirements for the position and had as much experience as other individuals recently hired for the same position. Under the circumstances, the investigator determines that she was denied employment based on a sex-based stereotype, a violation of Title VII.

Notice that the hiring manager’s questions about Patricia’s parental status may have created the problem. In practice, such questions should never be asked during an interview. There is no language in Title VII expressly prohibiting an employer from making inquiries about an applicant’s parental status. However, a fact finder is likely to presume that the answers to such questions formed the basis for a selection decision. As a result, if the selection decision is challenged, the fact that the employer made such inquiries will be evidence that the employer unlawfully used sex or pregnancy as a factor in the selection decision.

In another example, the EEOC demonstrates that discrimination can occur when sex-based assumptions are made about work performance and abilities. A female police detective who has received glowing performance reviews during her first four years with the City’s police department decides to adopt a child. Upon returning to work, her supervisor frequently asks how she is going to manage to stay on top of her case load while caring for an infant. Although she continues to work the same hours and close as many cases as she did before the adoption, her supervisor points out that none of her superiors are mothers and removes her from high-profile cases, instead assigning to her smaller, more routine cases normally handled by less experienced detectives. The EEOC may find that the City has violated Title VII by treating the detective less favorably based on a gender stereotype about working mothers.

As previously noted, an employer can also violate Title VII by making assumptions about pregnancy. The EEOC explains that “[a]s with other sex-based stereotypes, Title VII prohibits an employer from basing an adverse employment decision on stereotypical assumptions about the effect of pregnancy on an employee’s job performance, regardless of whether the employer is acting out of hostility or a belief that it is acting in the employee’s best interest.” Therefore, employers should refrain from making pregnancy-related inquiries, especially when the inquiry is followed by an unfavorable employment decision affecting the pregnant worker.

Discrimination based on sex occurs not only with respect to women; in recent years, the EEOC has also investigated charges of discrimination brought by male caregivers. The United States Supreme Court has observed that “[s]tereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. These mutually reinforcing stereotypes [have] created a self-fulfilling cycle of discrimination.” The EEOC gives the example of a father, an elementary schoolteacher wishing to take paid leave in order to care for his newborn son, whose request is denied, even though female employees have been granted such leave, in addition to their pregnancy-related medical leave. His employer tells him granting such a leave of absence to female employees is “different” and that the employer does not have to do the same for males. The EEOC may deem this action to be a violation of Title VII because the employer is denying male employees a type of leave, unrelated to pregnancy-related medical leave, that it is granting to female employees.

The Americans with Disabilities Act (the ADA) may also be the basis of a discrimination charge by a caregiver. In addition to prohibiting discrimination against a qualified worker because of his or her own disability, the ADA prohibits discrimination because of the disability of an individual with whom the worker has a relationship or association, such as a child, a spouse, or a parent. Under this provision of the ADA, an employer may not treat a worker less favorably based on stereotypical assumptions about the worker’s ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability. For example, an employer may not refuse to hire a job applicant who is divorced and has sole custody of his disabled son, if that decision is deemed to have been based on an assumption that the son’s disability would have a negative impact on the applicant’s work performance and attendance.

In its final remarks, the EEOC asserts that the anti-retaliation provisions set forth in Title VII and the ADA could apply in caregiver discrimination cases. These provisions protect individuals against any form of retaliation that would be reasonably likely to deter someone from engaging in protected activity; the EEOC further notes that “[c]aregivers may be particularly vulnerable to unlawful retaliation because of the challenges they face in balancing work and family responsibilities.”

While caregiver discrimination is often subtle and may not be readily associated with the aims of Title VII, it should nonetheless be taken seriously by employers, who must do their best to accommodate employees seeking to strike the appropriate balance between work and family responsibilities. Employers must take care to always:

• make employment decisions on non-discriminatory reasons;
• provide training to managers and supervisors on the issue of caregiver discrimination;
• discourage behavior or comments that may be deemed to constitute caregiver discrimination; and
• review and update policies and procedures to ensure compliance with relevant employment law.

By taking such proactive steps, employers can minimize the potential for claims of caregiver discrimination, saving themselves money and protecting the reputations of their organizations.