• EEOC Publishes 'Best Practices' For Employers To Avoid Caregiver Responsibility Claims
  • May 15, 2009 | Authors: Kara Mather Maciel; James J. Plunkett
  • Law Firm: Epstein Becker & Green, P.C. - Washington Office
  • On April 22, 2009, the Equal Employment Opportunity Commission ("EEOC") published its Best Practices to assist employers in avoiding violations of federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans With Disabilities Act ("ADA"), as they relate to workers with caregiving responsibilities. Specifically, the Best Practices provide guidance concerning employees who are "caregivers" and recommend certain steps that employers should take to ensure that their policies and practices do not result in unlawful discrimination.

    The Best Practices supplement the EEOC's Enforcement Guidance of 2007, in which the EEOC explained how policies that discriminate against workers with caregiving responsibilities are prohibited by Title VII if they are based on sex or another protected characteristic. Similarly, a workplace decision concerning a caregiver employee may violate the ADA's prohibition against discrimination based on a worker's association with an individual with a disability.

    Importantly, the Best Practices are not binding on employers and do not prohibit discrimination against caregivers per se; nor do they make caregivers a newly protected category under federal law. Rather, the EEOC published these suggestions to encourage employers to consider "the ways in which family-friendly workplace policies can improve workers' ability to balance caregiving responsibilities with work." The EEOC asserts that these recommendations may also benefit an employers' workers, customer-base and bottom line by improving employee retention, increasing profitability and reducing costs associated with high employee turnover.

    The Best Practices focus on recommendations for three major, employment-related areas: (1) general policies and decision-making; (2) recruitment, hiring and promotion; and (3) terms, conditions and privileges of employment. For example, employers should train managers about the legal issues that may arise as a result of employment decisions made concerning workers with caregiving responsibilities, and hold managers accountable for following the company's work-life policies. All employers should develop and distribute an EEO policy that includes caregiver discrimination as a basis for potential unlawful discrimination. The policy should include examples and descriptions of common stereotypes or prohibited conduct related to workers' caregiving responsibilities. For instance, conduct that may constitute unlawful discrimination could include asking female applicants, but not male applicants, about their child-care responsibilities or making hiring or promotion decisions based on assumptions related to female workers' ability to work late at night or on weekends. Like any EEO policy, there should be an anti-retaliation provision and the name of an individual whom workers can contact if they have questions or concerns. As with all employee complaints, employers should respond promptly to any complaint involving caregiver claims.

    During the hiring process, it is recommended that employers develop "specific, job-related qualification standards" to ensure that hiring decisions are based on an applicant's qualifications, rather than on his or her personal caregiving-related issues. All job openings, acting positions and promotions should be communicated to employees regardless of caregiving responsibilities. The EEOC also advises employers to examine their hiring policies in order to identify and remove any barriers to re-entry for those applicants who have gaps in employment due to their caregiving responsibilities.

    In light of these Best Practices, and the impact of the newly enacted Lilly Ledbetter Fair Pay Act of 2009, employers should take the time to monitor their compensation practices and performance appraisal systems to ensure that they are based on an employee's actual job performance and not based on unlawful stereotypes about caregivers. Additionally, the EEOC advocates the adoption of flexible workplace rules in order to accommodate employees with caregiving responsibilities. For example, employers are urged to provide reasonable sick time or leave, beyond what may be required by law. Flexible hours, overtime policies, and modified job duties are also advised in order to promote a workplace culture that recognizes the diversity of its employees and demonstrate a respect for employees' personal lives and outside obligations.

    According to the EEOC, discrimination against caregivers has become more prevalent as increasing numbers of employees "juggle both work and caregiving responsibilities." Again, while the Best Practices are not binding on employers, they do highlight the EEOC's renewed focus that discrimination against caregivers is an issue that the EEOC is likely to pursue more frequently in the future. Consequently, now is the time for employers to implement these Best Practices as a proactive mechanism to ward off any investigation into such claims. Employers should take the time to conduct a thorough review of their policies and procedures, training programs, and hiring and promotion activity to ensure that they are fully protected against potential caregiver discrimination claims.