EEOC Issues Guidance on Caregiver Discrimination
The Equal Employment Opportunity Commission (EEOC) on May 23 issued a new enforcement guidance called “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.”
The guidance addresses the treatment of employees who have family caregiving responsibilities. Federal equal employment opportunity (EEO) laws do not prohibit discrimination against caregivers per se, and the guidance is expressly not intended to create a new protected class of workers. However, discrimination against caregivers might constitute unlawful disparate treatment under certain circumstances due to the caregiver’s membership in a statutorily protected class such as gender, race, or disability, and the guidance provides examples of such circumstances. The stated purpose of the guidance is “to assist investigators, employees, and employers in assessing whether a particular employment decision affecting a caregiver might unlawfully discriminate on the basis of prohibited characteristics under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990 (ADA).”
The guidance covers such topics as: unlawful disparate treatment of female caregivers as compared with male caregivers, unlawful gender role stereotyping of working women, gender-based assumptions about future caregiving responsibilities, assumptions about the work performance of female caregivers, “benevolent” stereotyping, the effects of stereotyping on subjective assessments of work performance, pregnancy discrimination, discrimination against male caregivers, discrimination against women of color, unlawful caregiver stereotyping under the ADA, hostile work environment, and retaliation.
In the guidance, the EEOC also reminds employers that they may have specific obligations towards caregivers under other federal statutes, such as the Family and Medical Leave Act, and under state or local laws. The EEOC also “strongly encourages employers to adopt best practices to make it easier for all workers, whether male or female, to balance work and personal responsibilities,” commenting that workplace flexibility enhances employee satisfaction and job performance, enabling employers to benefit by adopting flexible workplace polices by, for example, saving millions of dollars in retention costs.
Federal agency interpretive guidance such as this one do not carry the force of law. However, courts often look to them as persuasive authority in deciding cases. Furthermore, they provide an indication of what agencies view as important and how they will approach charges brought before them.
Click here to view the EEOC enforcement guidance.
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