February 21st, 2012 | Lorene Park
Employers that assume that employees with caregiving responsibilities are unable or unwilling to take on new work responsibilities may be putting their companies at risk for caregiver bias claims, particularly if they make employment decisions based on such assumptions. Although there is no federal law that prohibits discrimination based solely on caregiving responsibilities, such claims can be brought through Title VII if the adverse employment action was also based on gender. For example, denying leave for a male worker who needs to care for his child when such leave is granted to female employees would violate Title VII. More commonly, however, the claims involve disparate treatment of women who are pregnant or have children. Caregiver bias claims (also referred to as family responsibility discrimination, or FRD) are on the rise, as indicated both by the EEOC’s meeting last week and by some recent cases involving such claims.
EEOC meeting. At a public meeting on February 15, experts told the EEOC that, at a time when more workers struggle to balance work and family, discrimination against pregnant women and workers with caregiving responsibilities remains a significant problem. Even though the Pregnancy Discrimination Act was passed more than 30 years ago, women still often face demotions, prejudice, and even job loss when they become pregnant. Additionally, both men and women face obstacles in their work lives because of their roles as caretakers. Panelist Lynn Friss Feinberg, Senior Strategic Policy Advisor at the AARP Public Policy Institute, told the Commission that the aging of the population and changing demographics mean that “42 percent of US workers have provided care for an aging relative or friend in the past five years,” and almost half of US workers expect to provide eldercare in the next five years. And the numbers do not include workers who care for children.
The EEOC meeting was a follow up on Commission meetings in 2007, when the EEOC issued its groundbreaking Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities and in 2009 when the Commission issued Employer Best Practices for Workers with Caregiving Responsibilities. Unfortunately, as Chair Barrien put it, the Commission is still seeing things that could have been seen before the PDA was enacted. Several witnesses pressed for stepped-up enforcement and greater guidance on the subject, as well as closer coordination between the EEOC, which enforces laws prohibiting discrimination based on sex, pregnancy, and disability, and the DOL, which enforces the FMLA and the FMLA’s provision for break time for nursing mothers.
Lawsuits. Meanwhile, in late January, female sales reps at Quest Diagnostics filed a $100 million class action in a federal district court in New Jersey, alleging gender and caregiver bias. According to the complaint, Quest engages in companywide, systemic discrimination in the selection, promotion, and advancement of sales reps at Quest Diagnostics and AmeriPath, including discrimination on the basis of pregnancy and caretaking responsibilities, in violation of Title VII and other federal statutes.
Similarly, the EEOC announced on February 16 that it filed a lawsuit against the Washington, D.C. law firm James E. Brown & Associates, PLLC, alleging that the firm violated Title VII when it rescinded its offer of employment to an attorney when it learned that she was pregnant. “Working women who choose to have children cannot be penalized or treated differently from other employees simply because they are pregnant,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office, which has litigation authority in the District of Columbia. “Employers must remember that refusing to hire a woman because she is pregnant violates federal law, and the EEOC will enforce that law.”
Pointers. Employers can learn more about avoiding claims of gender or caregiver bias by reviewing the EEOC’s publications, including its best practices. Generally, however, it is good to keep the following in mind:
- Train managers to be aware of legal obligations that may impact employment decisions about workers with caregiving responsibilities.
- Develop a policy that describes common stereotypes (e.g., assuming female workers with families are less committed or that their responsibilities will interfere with work; assuming male workers do not have significant caregiving responsibilities) and prohibits certain conduct related to caregiving responsibilities (e.g., treating workers without caregiving responsibilities more favorably or promoting them over more qualified caregivers).
- Promptly investigate complaints of caregiver bias and take corrective action.
- Protect employees who complain or provide information related to complaints of caregiver bias from retaliation.
- Review work policies that limit employee flexibility (such as mandatory overtime) to ensure they are necessary to business operations.
Following these suggestions and the other best practices outlined by the EEOC has the potential to help employers avoid costly lawsuits and to benefit all employees, not just those with caregiving responsibilities. It can also enable an employer to recruit and retain talented and loyal employees.