Question:

I understand that the law prohibits my company from discriminating against employees and applicants with caregiving responsibilities. However, I am unsure how the applicable law interacts with my right to make business decisions based on the qualifications and performance of employees and applicants. Could you explain the relevant law, as well as any recommended practices?

Answer:

In certain instances, the law prohibits employers from discriminating against employees and applicants with caregiving responsibilities, including those who take care of their children, parents, or spouse. Specifically, such discrimination may be unlawful under Title VII of the Civil Rights Act of 1964, the Fair Employment and Housing Act (FEHA), and the Americans with Disabilities Act (ADA). While caregivers are not a “protected class” under Title VII or the FEHA, treating caregivers differently than others based on a protected class such as sex, race, or disability violates the law.

Sex-based disparate treatment of caregivers occurs in many different forms. In some instances, employers make employment decisions based on stereotypes and gender-related assumptions. For example, an employer might refuse to hire or promote a young married woman based on the anticipation of future caregiving duties. The employer may assume that the woman will not be able to perform effectively or handle additional responsibilities once she has children. In other cases, the employer may refuse to promote a woman based on the stereotype that a woman should be the primary caregiver for her children, and she will not be able to juggle increased work responsibilities and child care. Moreover, male caregivers may also be subject to disparate treatment based on their sex. For example, an employer may deny a male employee leave for childcare purposes, assuming that the male employee has a lack of domestic responsibilities.

All of the above-described employment decisions are illegal as they are based on the sex of the employee. In addition, disparate treatment of caregivers may be based on race, national origin, or disabilities. For example, an employer who hires Caucasian women instead of Hispanic women based on a belief that Hispanics have more children would be in violation of the law. Furthermore, under the ADA, discrimination based on the disability of an individual with whom an employee has an association is prohibited. Thus, it would be illegal for an employer to refuse to hire an applicant because the applicant’s son has a learning disability. An employer must instead make employment decisions based solely on the qualifications and experience of the applicants for a position without considering their potential caregiver obligations.

In an attempt to reduce violations of the law in this area, the Equal Employment Opportunity Commission (EEOC) has recently published a list of best practices and proactive measures that go beyond the requirements of the law. The EEOC recommends that employers train their managers about the legal obligations impacting their decisions. Specifically, the EEOC suggests that employers develop strong and clear policies addressing unlawful caregiver discrimination. Such policies should define relevant terms, describe common stereotypes, and provide examples of prohibited conduct. Further, employers must respond to and investigate complaints of caregiver discrimination efficiently and effectively, and protect against retaliation.

For hiring and promotional considerations, the EEOC advises employers to develop specific job-related qualification standards, focus on each individual’s qualifications, recruit individuals with caregiving responsibilities, and ensure that employment decisions are well-documented and transparent. As to the terms, conditions, and privileges of employment, employers should monitor compensation and performance evaluations, encourage employees to request flexible work arrangements if practicable and suitable for the workplace, and consider reassigning job duties that employees are unable to perform because of caregiving responsibilities. Moreover, it is wise for employers to post employee work schedules as early as possible, ensure that employees are given equal opportunities to participate on complex or high-profile assignments, and provide support or referral services that offer caregiver-related information to employees.

In closing, employers may not discriminate against caregivers based on their sex, their race, the disability of the individual being cared for, or any other legally protected category. To reduce the risk of caregiver discrimination lawsuits, the EEOC’s guidance and best practices recommendations should be followed. For more information, the best practices publication outlined above can be accessed at
http://www.eeoc.gov/policy/docs/caregiver-best-practices.html.
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