• EEOC's 'Best Practices' To Avoid Disparate Treatment Claims by Employees with Caregiver Responsibilities
  • May 28, 2009 | Authors: Gregory C. Parliman; Theresa A. Kelly; Kristine J. Feher
  • Law Firms: Day Pitney LLP - Morristown Office; Day Pitney LLP - Hartford Office
  • On April 22, 2009, the U.S. Equal Employment Opportunity Commission ("EEOC") issued suggested "best practices" to help employers address issues related to workers with caregiver responsibilities. Caregiver responsibilities include providing (1) primary childcare, (2) eldercare, or (3) care for a disabled individual. Caregivers may be male or female.

    Although "caregiver" is not a protected category, certain treatment of caregivers in the workplace may violate Title VII, the Americans with Disabilities Act ("ADA"), and the Family and Medical Leave Act ("FMLA"). Disparate treatment of, or discrimination against, caregivers may be based on sex-based stereotyping, subjective decision-making about working mothers, bias against working fathers, and stereotyping based on association with a disabled individual. Some specific examples include assuming a female caregiver is less committed to the workplace, denying a male caregiver leave to care for a child, or denying female employees with young children job opportunities that are made available to men with young children.

    Some examples of the EEOC's suggested best practices include:


    • Training management about legal obligations under federal anti-discrimination laws regarding the treatment of employees with caregiving responsibilities.
    • Creating and enforcing policies that clearly address conduct that could constitute discrimination against caregivers.
      • An effective policy will:
        • define "caregiver" and "caregiving responsibilities" with a broad definition of family;
        • provide examples of stereotypes or biases against caregivers;
        • provide examples of prohibited conduct; and
        • prohibit retaliation against individuals who report harassment or discrimination based upon caregiver status.

    Recruitment, Hiring and Promotion

    • Prohibiting questions about children, family plans or other caregiving-related topics during a job interview.
    • Auditing current employment policies and procedures relating to pay, promotion and hiring to determine if they disadvantage caregivers.
    • Ensuring that all available job openings and promotion opportunities are communicated to every eligible employee regardless of any caretaker responsibilities.
    • Identifying and removing barriers to re-entry for individuals who take leaves of absences for caregiving purposes.

    Terms, Conditions and Privileges of Employment

    • Reviewing and revising workplace policies that limit employee flexibility.
    • Working with employees to create flexible work arrangements. Examples include:
      • Flextime programs that allow employees to vary their hours;
      • Flexible week opportunities which allow compressed workweeks;
      • Telecommuting or work-at-home options.
    • Reassigning job duties to assist employees who are unable to perform them due to caregiver responsibilities.
    • Training and promoting the development of all employees regardless of caregiver responsibilities.