By Dan Block
The U. S. Equal Employment Opportunity Commission recently issued a new Enforcement Guidance concerning potential illegal caregiver discrimination by employers. If you are familiar with employment laws, and keep up on news concerning employment laws, you may be thinking that you do not remember hearing that a new protected class, “caregivers,” has been created by Congress. That is correct; no new protected class has been created. However, employers can illegally discriminate against employees who are caregivers by violating the prohibitions against discrimination based on the long-standing protected classes of sex (including pregnancy) and/or disability.
Because of the EEOC’s concern about the potential for greater caregiver discrimination by employers in the future, in part because of the greater participation of women in the workforce, and the increasing elderly population in the U. S., the EEOC created the Enforcement Guidance concerning caregivers to help employers avoid unlawful discrimination against employees in these roles.
The document highlights, through discussion and examples of employer conduct, many ways, both seemingly obvious, and not so obvious, by which employers may discriminate against employee caregivers.
Well-trained managers and other personnel involved in the hiring process will already know that it is inappropriate to ask female applicants, but not male applicants, whether they have young children, or about their childcare responsibilities (that would be evidence of sex discrimination if the applicant is not hired). They should also know that they cannot refuse to hire women with young children or exclude them from certain job categories or management training programs, if they do not hold men to the same standard (that would constitute illegal discrimination based on sex).
The less obvious situations are when managers make decisions based on assumptions or stereotypes, rather than on actual qualifications or past job performance. In the Enforcement Guidance, the EEOC gives the example of illegal discrimination based on sex in the case of an employer who assumes that a woman with children would not want to relocate to another city for a promotion; and thus, the employer does not offer her the promotion. The employee may, in fact, not want to relocate-but the employer cannot assume that is the case. Instead, if the manager believes that the woman is well qualified for the promotion, the manager should offer the promotion and let the employee make the decision of whether she wants to accept the promotion.
Employers can also engage in illegal discrimination based on sex if they treat male caregiver employees less favorably than similarly situated female employees. The EEOC notes that some employers have denied male employees’ requests for leave to care for children, even though they grant female employees’ requests for leave to care for children.
One situation exists in which male and female employees can be treated differently, and that is pregnancy. Employers may permit women to take leaves specifically for childbirth and for periods of time in which they are incapacitated because of medical conditions related to pregnancy and childbirth.
Somewhat conversely, employers may not discriminate in terms of disability leave against women who experience medical conditions related to pregnancy and childbirth. Thus, an employer who provides paid and/or unpaid leaves to employees with other types of disabilities cannot provide less leave to women who are unable to work because of medical conditions related to pregnancy and childbirth.
Employers can also illegally discriminate against employees who are caregivers, both females and males, on the basis of disability if they make decisions based on assumptions or stereotypes concerning caregivers. The EEOC notes, for example, that an employer cannot legally “refuse to hire a job applicant whose wife has a disability because the employer assumes the applicant would have to use frequent leave and arrive late due to his responsibility to care for his wife.” Likewise, it is illegal for an employer to refuse to hire a woman because her husband has a disability.
While employers must take care not to discriminate against employees based on their status as caregivers, employers are not required to hire, retain, or promote men or women who are not qualified for the position being filled, or who are no longer performing satisfactorily in their current jobs. In other words, employment decisions based solely on legitimate job-related factors-such as experience, education, past performance, and other bona fide job qualifications-do not violate the law (although, unfortunately, that does not mean an employer will not be hit with an illegal discrimination claim if someone is unhappy with a decision by the employer not to extend a job offer or give a promotion to that person).
Employees who are caregivers can also be subjected to a hostile work environment in violation of applicable laws. Here again, no “caregiver” protected class exists; but instead, the unlawful harassment claim can be based on sex (including pregnancy) or disability, among others. The Enforcement Guidance includes as an example the situation in which a manager monitors the work time of a female subordinate returning from maternity leave, but not other employees; and makes derogatory comments to her, such as: “Now that you’re a mother, you won’t have the same dedication to your job . . . maybe you should rethink being a supervisor”; and that if she has another child, she could “kiss her career goodbye.”