EEOC Issues Guidance on Family Responsibilities Discrimination
Family Responsibilities Discrimination has been in the news a lot lately. I’ve been skeptical of the concept, drawing some interesting comments.
Katie Rice touched on a similar topic in her first post as an intern on this Blawg: Mommified: social science evidence of discrimination against mothers.
I’d thought we’d give the topic a rest for a bit, but the news can get in the way of such plans, and it did with this one.
Yesterday, the Equal Employment Opportunity Commission released a new enforcement guidance discussing discrimination against workers with caregiving responsibilities (elderly and disabled family members, as well as children), clearing some of the fog surrounding family responsibility discrimination.
These guidelines are designed to help employees, employers, and EEOC investigators understand whether a particular employment decision is unlawfully discriminatory. The introductory paragraph echoes my own comments that family responsibility discrimination is not a new type of discrimination, just application of existing discrimination laws to a situation that is drawing increasing attention, with the Family and Medical Leave action also in the picture:
Although the federal EEO laws do not prohibit discrimination against caregivers per se, there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment. …
This document is not intended to create a new protected category but rather to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate Title VII [of the Civil Rights Act of 1964] or the prohibition under the [Americans with Disabilities Act of 1990] against discrimination based on a worker’s association with an individual with a disability.
An employer may also have specific obligations towards caregivers under other federal statutes, such as the Family and Medical Leave Act, or under state or local laws.
The guidelines offer 20 concrete examples of conduct the EEOC considers illegal, such as treating male caregivers more favorably than female caregivers or stereotyping against a worker whose child or spouse has a disability.
They also contain a list of facts that may evidence unlawful discrimination, such as:
- Whether, despite the absence of a decline in work performance, the [employer] began subjecting . . . women to less favorable treatment after they assumed caregiving responsibilities.
- Whether female workers without children or other caregiving responsibilities received more favorable treatment than female caregivers based upon stereotypes of mothers or other female caregivers
- Whether the [employer] steered or assigned women with caregiving responsibilities to less prestigious or lower-paid positions.
These EEOC family responsibility guidelines condemn stereotypical perceptions of employees, sex-based stereotypes of working women and pregnant women, and discrimination against working fathers. The EEOC also makes it clear that an employer’s “benevolent” stereotyping, such as assuming a mother would not want a promotion if it meant moving to another city, still has adverse effects and may be illegal under Title VII.
- “U.S. Government Eases Path For Parents to Sue Employers” (Wall Street Journal)
- Wall Street Journal forum discussion of this topic
- The Juggle, Wall Street Journal blog “on choices and tradeoffs people make as they juggle work and family.”
- “Questions and Answers about EEOC’s Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities” (EEOC)
Such “guidances” issued by the EEOC do not have the same legal status as EEOC regulations. But they are a good source for understanding the EEOC’s interpretation of the statutes and regulations it enforces and determining which issues the agency considers of particular importance.
As is typical of such “guidances” , this one is well thought out and footnoted, as well as very readable and practically-oriented. It is well worth reading through carefully.
Note that although the focus is on disparate treatment, there are facts stated that could conceivably support a racial disparate impact challenge to some employer policies affecting caregivers. For example, “Women of color . . . may devote more time to caring for extended family members, including both grandchildren and elderly relatives, than do their White counterparts.”
Discrimination based on motherhood, along the lines outlined in this EEOC guidance, can have long-term negative career impact. Expect more litigation in this area. The EEOC has put all employers on notice they are going to be very interested in pursuing such cases — and they can be a tough adversary once they file a lawsuit.
Thanks to Katie Rice for helping me throw this one up in a hurry today.