• The EEOC Issues Best Practices or Employers Regarding the Treatment of Workers with Caregiving Responsibilities
  • May 19, 2009
  • Law Firm: Obermayer Rebmann Maxwell & Hippel LLP - Philadelphia Office
  • On April 22, 2009, the Equal Employment Opportunity Commission (“EEOC”) issued “Employer Best Practices for Workers with Caregiving Responsibilities” to help employers avoid unlawful discrimination claims brought by employees with non-work related caregiving responsibilities.  The best practices guidelines supplement the enforcement guidance issued by the EEOC in May 2007 entitled, “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities”, which illustrates situations where treatment of an individual with caregiving responsibilities may constitute unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) or the Americans with Disabilities Act of 1990 (“ADA”).

    While neither Title VII nor the ADA prohibit discrimination based on an employee or applicant’s caregiver status per se, employee rights lawyers have attempted to fashion caregiver protection out of the statutes’ prohibitions against discrimination on the basis of sex, race and association with an individual with a disability.  In its 2007 guidance, the EEOC recognized that there may be instances where an employer’s treatment of a caregiver might constitute unlawful discrimination.

    Sample Issues:

    For example, when an employer accepts a father of preschool aged children for an executive training program but not a mother of preschool aged children; assumes that a pregnant employee will not be committed to her work or that she will be unable to perform certain tasks; denies caregiver leave to a male caregiver but grants a similar request made by a female employee; refuses to hire an applicant because of her husband’s disability based on the assumption that she will be unable to perform her duties while caring for her husband; or makes or condones offensive or other harassing comments to employees because they are pregnant, a mother or caring for a disabled relative.

    The new best practices guidelines provide examples of workplace policies and practices that employers may implement in order to avoid discriminating against caregivers and to remove barriers to equal employment opportunities for employees.  The guidelines are not mandatory; rather, they are “proactive measures that go beyond federal nondiscrimination requirements.”  This email highlights some of the EEOC’s suggested best practices.

    Proposed Best Practices:

    1. The EEOC recommends that employers be aware of and train managers and supervisors about federal laws that may protect workers with caregiving responsibilities on the basis of their gender, race or association with an individual with a disability.
    2. The EEOC also recommends that employers develop, distribute and enforce a strong EEO policy that addresses specific conduct that might constitute unlawful discrimination against caregivers based on protected characteristics.
    3. The EEOC suggests that an effective policy would describe the general stereotypes about caregivers that may lead to unlawful discrimination.
    4. The EEO policy should also establish mechanisms for reporting complaints of caregiver discrimination and prohibit retaliation against individuals who make such complaints.
    5. With respect to recruitment, hiring and promotion of employees, the EEOC suggests that employers develop specific, job-related qualification standards for every position to minimize the potential for gender stereotyping and other unlawful discrimination against caregivers.  For example, during the application process, employers should focus on the applicant’s qualifications, and not ask questions related to the applicant’s family, plans to start a family, pregnancy or other caregiving-related issues.
    6. Additionally, employers should attempt to remove barriers to re-entry for individuals who have taken leave due to caregiving responsibilities.
    7. The EEOC also suggests that employers implement flexible work arrangements to accommodate the caregiving responsibilities of employees.  Flexible work arrangement programs may include: flextime; telecommuting; work-at-home and flexplace programs; reduced-time options; and job sharing opportunities.  According to the EEOC, studies have shown that flexible work arrangements have a “positive impact on employee engagement and organizational productivity and profitability.”