Richard D. Alaniz

At most companies, employees with caregiving responsibilities at home present management with a series of difficult problems. Are these employees always available as needed? Are they as productive as others? Will other employees become angered if they perceive special treatment for co-workers, such as flex-time? Can caregiving employees be penalized if they are less productive or effective?

In its continuing effort to promote work-life balance, the Equal Employment Opportunity Commission (EEOC) recently weighed in with new guidelines outlining how working parents or those caring for elderly parents may be able to claim discrimination in the workplace. The new guidance underscores the fact that employers must be extremely cautious when dealing with caregivers - even though they are not a specifically protected “class” under EEO laws.

“Although the federal EEO laws do not per se prohibit discrimination against caregivers, there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment,” according to the 33-page enforcement guidance, “Unlawful Disparate Treatment Of Workers With Caregiving Responsibilities,” which was released May 23.

The guidance does not create a new protected class of workers; rather, it is intended to help investigators, employers, and employees determine whether a caregiver may have been unlawfully discriminated against under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990. Treating a caregiver differently from other caregivers of different race, sex, national origin, religion, or age can result in a potential discrimination claim.

Testifying before the EEOC last April, Heather Boushey, senior economist for the “progressive” Center for Economic and Policy Research, pointed to the fact that families are striving to create a work-life balance, since “the overwhelming majority of children do not have a full-time caretaker at home.” Boushey cited information from the Bureau of Labor Statistics that said two-thirds of families with children have all available parents at work. In 62 percent of married-couple families, both parents work. In 71 percent of single-mother families and 83 percent of single-father families, the parent works.

“Achieving work/life balance is not a problem for just a few U.S. workers but, rather, is the norm for the majority of the U.S. workforce,” Boushey said. “Workers across a multitude of demographic dimensions - age, race, ethnicity, marital status, income, educational attainment, and kind of job - face work/life issues. Yet, the majority of the U.S. workforce reports having little or no flexibility in setting their hours and nearly two-thirds report not having paid sick days to cover their time if a family member is ill.”

Boushey also pointed to work-life challenges of those who must care for elderly parents. “An indication of the growing importance of elder care is that over the next 10 years, home health aides are projected to be the fastest growing occupation in the United States, increasing by over 50 percent,” she said.

It seems clear that the EEOC has taken steps to assist caregivers as much as possible without defining them as a protected class. Instead, the EEOC has pointed out the high correlation between caregivers and those in protected classes, and used the new guidance to put employers on notice. As the EEOC has noted, caregiver discrimination extends far beyond mothers of young children.

Men and women are increasingly caring for elderly parents, and those numbers will only rise as Baby Boomers age. And unlike the responsibilities of caring for children, which generally decrease with time, the burdens of eldercare often grow more demanding as parents age. Unexpected health problems can make eldercare demands on employees’ time much less predictable than those of childcare.

Employees who care for disabled family members, such as adult children, spouses, or parents, may also present circumstances that could lead to claims of discrimination. According to the most recent U.S. census, nearly a third of families have at least one family member with a disability, and about one in 10 families with children under 18 years of age includes a child with a disability. Most men and women who provide care to relatives or other individuals with a disability are employed.

Today, most of the caregiving burden still falls to working women, and statistics show that the demands are particularly heavy for women of color, especially African-American women. But men are taking on more of the care, so their potential for claiming discrimination is also growing. Between 1965 and 2003, men nearly tripled the amount of time they spent on childcare, and more than doubled their time spent on household chores.

There are countless actions that employers may presume to be fair, but might in fact be considered unlawful discrimination. The EEOC has laid out several common scenarios under which discrimination against a worker with caregiving responsibilities might constitute unlawful disparate treatment. Among those:

Treating male caregivers more favorably than female caregivers
Denying women with young children an employment opportunity that is available to men with young children may be cause for a claim of discrimination.

Sex-based stereotyping of working women
The EEOC outlines several ways that stereotyping working women can open employers up to a potential discrimination claim. The EEOC points to such examples as reassigning a woman to less desirable projects based on the assumption 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 her niece and nephew based on the assumption that, as a female caregiver, she will not want to work overtime.

Subjective decisionmaking
Employers must be very careful about lowering subjective evaluations because of an employee’s caregiving duties. For example, an employer should not assume that a female employee’s work performance will worsen after she becomes the primary caregiver of her grandchildren, until and unless there is an actual decline in work performance.

Assumptions about pregnant workers
Employers should not limit a pregnant worker’s job duties based on pregnancy-related stereotypes.

Discrimination against working fathers
Employers should be conscious about treating male and female caregivers equally. Discrimination could be claimed for denying a male caregiver leave to care for an infant under circumstances where they would grant leave to a female caregiver.

Discrimination against women of color
Reassigning a Latina worker to a lower-paying position after she becomes pregnant could open employers up to potential discrimination claims.

Stereotyping based on association with an individual with a disability
Employers should not, for example, refuse to hire a worker who is a single parent of a child with a disability based on the assumption that caregiving responsibilities will make the worker unreliable.

Hostile work environment affecting caregivers
This can take several forms, according to the EEOC. Those include subjecting a female worker to severe or pervasive harassment because she is a mother with young children, subjecting a female worker to severe or pervasive harassment because she is pregnant or has taken maternity leave, or subjecting a worker to severe or pervasive harassment because his wife has a disability. What may constitute “severe or pervasive harassment” is a subjective determination filled with risk for employers.

“With this new guidance, the Commission is attempting to clarify how the federal EEO laws apply to employees who struggle to balance work and family,” said agency Vice Chair Leslie E. Silverman. The key for employers is to make sure they are evaluating employees based on actual performance and not on assumptions or stereotypes, and are treating all employees who are caregivers on an equal basis.

Publication date:09/24/2007