Understanding Family Responsibilities Discrimination
Entitled “Enforcement Guidance: Unlawful Disparate Treatment of Workers With Caregiving Responsibilities,” the EEOC’s guidelines are intended to assist employers, employees and EEOC staff in determining whether the stereotyping or adverse treatment of employees with caregiving responsibilities results in disparate treatment, which is unlawful under the Federal EEO laws. For example, does the employer who resists hiring the female job applicant because she has small children at home and would presumably take more sick leave than a male counterpart violate federal anti-discrimination laws? Or does the employer who denies the male employee childcare leave following the birth of a child because male employees haven’t traditionally assumed the role of nurturer in a family violate Title VII of the Civil Rights Act of 1964?
Federal EEO laws do not prohibit employment discrimination based solely on parental or other caregiver status. (EEOC Guidance, p. 1.) Likewise, here in Michigan, the Elliott-Larsen Civil Rights Act does not afford specific protection to those with family caregiving responsibilities.
Nonetheless, according to the EEOC’s Guidance, unlawful disparate treatment arises where a worker with caregiving responsibilities is subjected to discrimination based upon a protected characteristic under federal EEO law, such as gender or race. Unlawful disparate treatment of a caregiver could also arise under the Americans With Disabilities Act, where an employer discriminates against a worker based upon his or her association with an individual with a disability.
The new Enforcement Guidance illustrates various circumstances under which discrimination against a caregiver could give rise to a violation of federal EEO law. Examples include:
- Treating male caregivers more favorably than female caregivers as in the case where employment opportunities are denied to women with young children but not to similarly situated male applicants/employees who have young children.
- Sex-based stereotyping of working women, such as assigning a woman to a less desirable project or assignment based on assumptions that, as a new mother, she will be less committed to her job, or reducing a female employee’s workload after she assumes full-time care of a family member based on the assumption that, as a female caregiver, she will not want to work overtime.
- Adversely evaluating a female employee’s work performance after she becomes the primary caregiver of a family member, despite the absence of an actual decline in her work performance.
- Limiting a pregnant worker’s job duties based on pregnancy-related stereotypes.
- Denying a male caregiver leave to care for an infant under circumstances where such leave would be granted to a female employee.
- Reassigning an African-American or Latino worker to a lower paying position after she becomes pregnant.
- Refusing to hire a job applicant who is the single parent of a child with a disability based on the assumption that caregiving responsibilities will make the applicant unreliable.
- Creating a hostile work environment which affects employees who are also caregivers, such as by subjecting a female worker to severe and pervasive harassment because she is a mother with young children; subjecting a female worker to severe and pervasive harassment because she is pregnant or has taken maternity leave; or subjecting a worker to severe and pervasive harassment because his wife has a disability. (Questions and Answers about EEOC’s Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, p. 2.)
Statistically speaking, women are primarily responsible for the care of children, the disabled and the elderly, including caring for parents, in-laws, and spouses. Unlike childcare, however, eldercare responsibilities generally increase over time and can be much less predictable than childcare. As eldercare becomes more common, workers in the so-called sandwich generation, those between the ages of 30 and 60, are more likely to face work responsibilities along with both childcare and eldercare responsibilities. According to the most recent U.S. census, nearly one-third of families have at least one family member with a disability and about 1 in 10 families with children under 18 years of age includes a child with a disability. Most people who provide care to relatives or the disabled are also employed outside of the home.
Significantly, women of color may be especially impacted by family responsibilities discrimination. African-American mothers with young children are more likely to be employed than other women raising young children, and both African-American and Hispanic women are more likely to be raising children in a single-parent household than are white or Asian women. Women of color also may devote more time to caring for extended family members, including both grandchildren and elderly relatives than do their white counterparts. (EEOC Guidance, pp 3-4).
Sex-based and race-based stereotyping about caregiving responsibilities are not limited to female workers. Male caregivers may face the mirror image stereotype to female caregivers: that men are poorly suited to caregiving because they have not traditionally had that role in society. As a result, men may be denied parental leave or other benefits routinely afforded their female counterparts.
Employment decisions based on gender and racial stereotypes about workers are unlawful because anti-discrimination laws entitle workers to be evaluated as individuals, rather than as members of groups having certain generalized characteristics. In evaluating disparate treatment of caregivers, the EEOC will examine such information as:
- Whether the employer asked female applicants, but not male applicants (or applicants of color, but not white applicants), whether they were married or had young children or about their childcare or other caregiving responsibilities
- Whether decision-makers or other officials made stereotypical or derogatory comments about pregnant workers or about working mothers or other female caregivers
- Whether the employer began subjecting the caregiving employee to less favorable treatment soon after it became aware of caregiving responsibilities or that the employee was pregnant
- Whether, the employer began subjecting the caregiving employee to less favorable treatment after she assumed caregiving responsibilities, despite the absence of a decline in the employee’s actual work performance
- Whether female workers without caregiving responsibilities received more favorable treatment than female workers with caregiving based upon stereotypes of mothers as traditional nurturers
- Whether the employer assigned women of color with caregiving responsibilities to less prestigious or lower paid positions than male workers who had similar caregiving responsibilities
- Whether the employer denied benefits or leave time to male caregivers that it routinely granted to female caregivers
- Whether the employer’s asserted reason for an employment action is credible (EEOC Guidance, pp. 9-10.)
In summary, federal law does not prohibit discrimination based solely on parental or other caregiver status. An employer generally does not violate the prohibition against disparate treatment if, for example, it treats working mothers and working fathers in a similar unfavorable (or favorable) manner as compared to childless workers. However, federal law does not permit employers to treat workers less favorably merely on the gender-based or race-based assumption that a particular female worker will assume caregiving responsibilities or that a female worker’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 or race-based, employment decisions based on such stereotypes violate federal law.
| ||Karen Bush Schneider is a shareholder with White, Schneider, Young & Chiodini, PC, a law firm specializing in employment and benefits law.|