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In a New Guidance,
the EEOC Focuses Attention on Discrimination
Against “Caregivers”
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On May 23, 2007, the Equal Employment Opportunity Commission (EEOC) issued an
Enforcement Guidance document addressing employers’ treatment of workers
with “caregiving responsibilities.” Such a Guidance does not
have the force of law, but it is significant in that it identifies numerous specific
situations it contends constitute discrimination under Title VII of the Civil
Rights Act or the Americans with Disabilities Act. It is something that
will likely be relied on by plaintiffs’ attorneys, the courts, and the
EEOC itself when pursuing discrimination claims involving caregivers.
Who are caregivers?
The EEOC Guidance defines a caregiver as any person who takes care of children,
spouses, aging parents, or family members with disabilities. The EEOC issued
the Guidance because it believes that caregiving responsibilities are borne unequally
by women, particularly low-income women and women of color. The EEOC
also believes that women juggling work and caregiver duties are more likely to
hit a “maternal wall” at work that limits their employment opportunities.
What constitutes unlawful discrimination involving caregivers?
According to the EEOC, stereotyping – even when done unconsciously or reflexively – is
the basis for discrimination against caregivers. The Guidance provides
more than fifteen examples of discriminatory actions affecting caregivers under
the federal anti-discrimination statues, including the following:
- Denying promotion opportunities or advantageous
assignments to a female employee once she became
pregnant or had children, while allowing fathers
those same opportunities
- Failing to hire a female candidate who is married
and of child-rearing age based on the assumption
that she will be less committed to her job than
a man
- Failing to promote a female employee with a
flexible work arrangement when there was no
evidence that the arrangement had negatively
impacted her performance
- Refusing training opportunities to a woman
returning from a leave to care for dying parent
with no basis for refusal
- Refusing leave or other flexible arrangements
for male caregivers when such arrangements are
provided to female employees
Other examples can be reviewed in the Guidance at www.eeoc.gov/policy/docs/caregiving.html.
The bottom line for employers
Although it is not law, this Guidance re-emphasizes the need for fair and consistent
treatment of caregiving employees without regard to sex, pregnancy, or disability. Employers
may still discipline employees for poor performance, even if the problems are
caused by the caregiving responsibilities. But when a company considers
adverse action related in some way to caregiving responsibilities, standards
must be applied consistently. For example, if a company terminates a mother
due to excessive absenteeism caused by children’s illnesses, it should
make certain that a childless male with a similar pattern of absences has received,
or would receive, the same discipline.
* Muskat, Martinez & Mahony, LLP represents
employers in labor and employment law matters. For
more information, visit our website at www.m3law.com,
or contact any of our partners:
Mike Muskat, (713) 987-7851, mmuskat@m3law.com
Samantha Martinez, (713) 987-7852, smartinez@m3law.com
Michelle Mahony, (713) 987-7849, mmahony@m3law.com
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