• Statutory Spotlight: EEOC Guidance on Employer Best Practices for Workers with Caregiving Responsibilities
  • August 31, 2009 | Author: Rebecca E. Ivey
  • Law Firm: Troutman Sanders LLP - Richmond Office
  • An increasing number of workers juggle work and caregiving responsibilities, taking on caregiving roles for their children, aging parents, or family members with disabilities. In response to recent changes in the Family and Medical Leave Act (FMLA), the Equal Employment Opportunity Commission (EEOC) has issued a supplement to its 2007 guidance on employer best practices for workers with caregiving responsibilities.The best practices suggested by the EEOC are proactive measures that go beyond the requirements of federal non-discrimination laws, but which may reduce the chance of EEO violations against caregivers, and which the EEOC believes can enhance employee productivity, reduce absenteeism, reduce costs, and positively affect profits, recruitment and retention, even in today’s challenging economic climate. The guidance first provides examples of best practices that are general in nature, and then addresses two important aspects of employer practices: (1) recruitment, hiring, and promotion, and (2) terms, conditions and privileges of employment. Because these best practices may reduce costs and limit exposure to liability under federal anti-discrimination law, this guidance is a must-read for employers.

    The best practices advocated by the EEOC focus on both creation of appropriate workplace policies and consistent application of those policies:

    General Examples of Best Practices

    • Be aware of and train managers about the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities, such as the Americans with Disabilities Act (ADA), recently amended, and the FMLA.
    • Develop, disseminate, and enforce a strong equal employment opportunity policy that identifies examples of specific conduct that might constitute unlawful discrimination against caregivers based on characteristics protected by federal anti-discrimination laws.
    • Ensure managers at all levels are aware of, and comply with, the organization’s work-life policies, with particular attention to those managers who regularly interact with employees or who are responsible for assignments, leave approval, schedules, promotions, and other employment benefits.
    • Respond to complaints of caregiver discrimination efficiently, effectively, and promptly, taking corrective action as necessary to resolve the situation and prevent future problems.
    • Protect employees against retaliation by implementing policies prohibiting retaliation against employees reporting potential discrimination and by strictly enforcing those policies.

    Best Practices Affecting Recruitment, Hiring, and Promotion

    • Review employment policies and practices to determine whether they disadvantage workers with caregiving responsibilities.
    • When hiring, focus on the applicant’s qualifications rather than making inquiries about family life. To this end, develop specific, job-related qualification standards for each position that reflect the duties, functions, and competencies of the position and minimize the potential for gender stereotyping or other unlawful discrimination against caregivers.
    • Ensure job openings, acting positions, and promotions are communicated to all eligible employees regardless of caregiving responsibilities. Do not assume individuals with caregiving responsibilities, such as mothers of young children or single parents, will not be interested in particular positions.
    • Implement recruitment practices that target individuals with caregiving responsibilities who are looking to enter or return to the workplace, such as advertising in publications directed toward caregivers.
    • Identify and remove barriers to re-entry for individuals who have taken leaves of absence from the workforce due to caregiving responsibilities or other personal reasons. Provide skills and training necessary to enhance the competitiveness and competency of current employees while on leaves of absence.
    • Ensure that employment decisions are well-documented and transparent to the extent feasible. To prevent misunderstandings, provide clear and full explanations, and always retain records relevant to decisions about hiring, promotion, performance, pay, leave, benefits, awards, and other employment decisions for at least the length of time required by the law.

    Best Practices Affecting Terms, Conditions, and Privileges of Employment

    • Monitor compensation practices and performance appraisal systems for patterns of potential discrimination. Ensure that performance appraisals are based on an employee’s actual job performance and not on stereotypes about caregivers.
    • Revise workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure they are necessary to business operations. Instead of such policies, encourage employees to request flexible work arrangements that allow them to balance work and personal responsibilities, and work with employees to customize flexible work arrangements to meet their specific needs. Consider flexible options such as flex time, telecommuting, part-time work, job sharing, voluntary overtime, and reassignment of specific job duties on a temporary or permanent basis.
    • Provide reasonable personal or sick leave to allow employees to engage in caregiving. Employers could allow employees to use sick leave to care for family members, or engage in dialogue with employees to determine appropriate leave, even when that leave may not be required by law. Ensure leave policies are available to male and female employees on an equal basis, and permit employees to take leave with little notice in the case of an emergency, or to take leave in short increments. Consider establishing a leave donation bank, where employees can voluntarily contribute their leave to co-workers.
    • Post schedules as early as possible so employees can make personal caregiving arrangements in advance.
    • Promote an inclusive workplace culture, encouraging employees to demonstrate respect for other employees’ personal lives and obligations.
    • Develop the potential of employees, supervisors, and executives without regard to caregiving or other personal responsibilities by ensuring employees are given training, equal opportunity to participate in complex or high-profile assignments, and equal access to workplace networks.
    • Provide support, resource, and referral services that offer caregiver-related information to employees, such as referral services for local child care centers or assisted living facilities, adoption assistance services, parenting education classes, college financing classes, or a toll-free caregiver hotline.

    While the EEOC’s guidance does not constitute legal precedent or authority, it offers a practical reference to employers in an otherwise complex legal area. By taking some or all of these steps, an employer will be going above and beyond the requirements of federal law, which minimizes the risk of being held liable for employment discrimination or violations of other federal employment laws. Additionally, the EEOC points to studies finding that these workplace policies have a positive impact on employee productivity and organizational profitability, benefiting both businesses and workers. Employers should familiarize themselves with this guidance, while keeping in mind that, as best practices, these recommendations go above and beyond the requirements of federal anti-discrimination law.

    The EEOC’s guidance on best practices for employers with regard to workers with caregiving responsibilities may be accessed at: http://www.eeoc.gov/policy/docs/caregiver-best-practices.html.