Blog Post: Family Responsibilities Or Caregiving Discrimination (Or, How To Avoid Spending Money On Lawyers Because Of An Avoidable EEOC Charge)

The list of protected classes under Title VII (the Federal law that prohibits discrimination in employment) does not, on its face, spell out every claim that could be brought by a disgruntled employee. I say this because the facts that give rise to a discrimination claim are rarely clear cut. Rarely does a claim cross my desk with facts like these: "I was fired. In my exit interview, they told me it was because I was a woman over 40." Instead, the stories that I hear are steeped in real life, human messiness.

One interesting group of claims that the Equal Employment Opportunity Commission (EEOC) is focusing on are dubbed "caregiving" discrimination claims. In 2007, the EEOC issued enforcement guidance addressing disparate treatment of workers with caregiving responsibilities. In May 2009, the EEOC supplemented the guidance with additional recommendations for employers' best practices.

A caregiving discrimination claim can take many forms. Consider these facts:

• Tim and Jane apply for a position. Both mention their families in their interviews: Jane has small children, and Tim's elderly mother lives with him. The employer asks Jane about her child care arrangements, but does not ask Tim about how he will do the job while caring for his ailing parent. The employer offers the position to Tim because of a fear that Jane won't be able to work occasionally unscheduled hours, because she will need to leave to pick up her kids from child care.
• Bob applies for paternity leave because he and his wife are adopting a baby. Sue applies for maternity leave because she is going to give birth. They apply to different managers, but Sue's request is granted, Bob's is denied. Bob is told that he should "focus on his career" as the sole breadwinner.

In the first example, the employer made an employment decision based upon an assumption about Jane's ability to perform her duties. In the second, Bob's request was denied because of his gender and judgments about what his priorities should be. Both decisions probably created unintended liability.

The claims that arise from this particular form of discrimination are varied and, at times, unexpected. The 2007 guidance outlines several potential claims, including disparate treatment of female caregivers as compared with male caregivers, unlawful gender stereotyping of working women including benevolent stereotyping, pregnancy discrimination, discrimination against male caregivers or women of color, and unlawful caregiver stereotyping under the Americans with Disabilities Act. Other claims could include discrimination or retaliation claims under the Family and Medical Leave Act.

Consider the following steps that you could take to avoid unintended liability:

• Create policies that educate and guide managers.
• Help employees identify stereotypes about caregivers that could lead to unintended discrimination.
• Focus interviews on the applicant's ability to do a particular job, not their actual or perceived inability.
• Create thorough job descriptions that clearly identify the essential functions of the job to facilitate application and promotion procedures.
• Document the entire employment process - from application, through performance and separation.
• Evaluate the necessity/feasibility of overtime, leave, flex time and other workplace options.
• Identify a point person to work on and with leave and family responsibilities issues.
• Communicate clearly about schedules, bending expectations when appropriate and necessary.

Find the EEOC Guidance at www.eeoc.gov/policy/docs/caregiving.html and www.eeoc.gov/policy/docs/caregiver-best-practices.html

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.