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New EEOC Guidelines on Family Responsibility Discrimination

November 2nd, 2007 Posted by Amelia

The EEOC has released new guidelines on discrimination against workers with caregiving responsibilities.

The Equal Employment Opportunity Commission, or EEOC, describes this as a “proactive” measure to combat the emerging discrimination in the workplace against employees with family responsibilities.

The enforcement guidelines, entitled “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities,” detail the new EEOC regulations regarding how the agency will enforce current laws against discrimination. Treating a parent or other employee with caregiving responsibilities differently may constitute unlawful discrimination under both Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990, or ADA.

With changing workplace demographics, including the “sandwich generation” caring for both young children and aging parents, and more women in the workforce, the EEOC is seeing an increasing number of complaints based on family responsibilities. These responsibilities may vary depending upon gender, race or ethnicity, according to the EEOC.

“With this new guidance, the commission is clarifying how the federal EEO laws apply to employees who struggle to balance work and family,” says EEOC Vice Chair Leslie E. Silverman. She adds, “Fortunately, many employers have recognized employees’ need to balance work and family and have responded in very positive and creative ways.”

This document is not intended to create a new protected category of employee – only a statute can do that. Instead, it serves to illustrate the circumstances in which stereotyping or disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.

The EEOC highlights a number of discrimination issues that the agency has encountered, including:

Treating male caregivers more favorably than female caregivers
Discrimination against working fathers
Discrimination against “women of color” with caregiving responsibilities

One of the most insidious types of Family Responsibilities Discrimination, or FRD, is stereotyping. In one case, an employer assigned women to less desirable projects based on the assumption that as new mothers, they would be less committed to their jobs. In another case, a company refused to consider the mother of small children for a position that involved extensive travel, although they did consider fathers for the position. In many cases, employers who engage in this type of illegal behavior actually think they are doing something positive for the caregiving employee.

Another serious type of FRD involves workers who care for elderly parents, or for a person of any age with a disability. In a number of cases, employers have refused to hire an applicant who provides such care. The EEOC points out that this is illegal discrimination based on a simple association with a person with a disability. The employer is making an unfounded assumption that the caregiver’s responsibilities will reduce the worker’s effectiveness on the job.

In one case, a woman’s job performance was ranked lower after she became caregiver for her grandchildren, even though she could prove that in objective terms, her performance was unchanged.

The attorney James McDonald of the law firm Fisher & Phillips writes in his column Common Sense Advice on FRD, “Family responsibility discrimination has been claimed with increasing frequency over the past few years by parents and other caregivers who feel that they have lost job opportunities as a result of their responsibilities at home.” He adds that these new guidelines from the EEOC will “raise awareness of the issue among employees.”

The EEOC investigates a number of complaints each year, including those of discrimination in the workplace based on race, color, religion, sex and national ancestry. The agency also enforces the anti-discrimination clauses of the Americans with Disabilities Act, and laws prohibiting discrimination against pregnant women and workers over 40.