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July 10, 2007
Hearing increasing complaints regarding a type of mistreatment called family responsibilities discrimination, the Equal Employment Opportunity Commission, guardian of employees' civil rights, recently issued new guidelines aimed at curbing the problem.
Caregiver complaints are burgeoning. EEOC reports that such complaints have risen by a whopping 400 percent in the last decade. It's not only parents of young children who have trouble balancing their careers and their responsibilities at home--and charge discrimination as a result. Many middle-aged workers are caring for elderly parents, either in their own homes or halfway across the country. So they need flexible work schedules and sometimes, a leave of absence. Employers that fear lost productivity and a greater burden on co-workers sometimes try to prevent caregivers from taking time off. So EEOC's new guidelines define how bias against these workers may be shown--and how to avoid it.
We asked BLR Legal Editor Joan Farrell to review the guidance with us. She noted that what EEOC calls "benevolent" stereotyping can occur when a supervisor makes assumptions about a worker on the basis of his or her (usually her) status--as pregnant or as the mother of one or more small children, for example. Employers can unwittingly halt an employee's career progress in its tracks by "protecting" her from extensive travel or too much responsibility. The guidance is full of examples of what to do and what not to do--virtually all based on real legal cases.
No new laws and no new protected class. Witnesses at EEOC's hearing reported as many as 17 different ways a plaintiff can sue for family responsibilities discrimination, and the guidance doesn't suggest they use any particular law. One choice is the Americans with Disabilities Act (ADA), which protects the right of a nondisabled person to associate with someone with a disability. Farrell pointed out that an employee need not show that the person needing care is a member of his or her immediate family. A friend, same-sex partner, or distant relative can qualify as well under ADA. It's also important to recognize that if an employee's performance deteriorates, and the employer has documented it, the individual can be disciplined or terminated even if the problems are the direct result of pregnancy or caregiving needs.
The heart of the guidance, stresses Farrell, is that any employee's caregiving responsibilities should be taken as seriously as those of any other employee. That, she feels, is going to be the toughest part of the guidance for compliance from employers. "In an ideal world," she comments, "you focus only on performance, but people and their lives are far more complex than that." She offered an example: A supervisor who's breezed through her two or three problem-free pregnancies may find it hard to be flexible for a subordinate who is exhausted and sick all the time during her pregnancy.
Want to live with--and comply with--EEOC's new guidance on responding to employee caregivers' needs? Here are several tips from BLR's legal expert, Joan Farrell, J.D.
First, incorporate the essence of the new guidance in your antidiscrimination policy. Word the addition carefully, though, because there is no new protected class. That is (although we'd strongly advise against it), you can ignore the needs of all employees with family caregiving responsibilities. To treat them all equally, no matter how badly, is not illegal.
Apply your newly amended policy with scrupulous consistency. That is, don't be more generous to pregnant employees than to those caring for elderly parents or nursing a spouse through an acute or terminal illness.
Check the laws in your own state regarding parental status and family responsibilities discrimination (FRD).
Apply your policies on flex schedules, leaves of absence, remote work, and other accommodations fairly and consistently among all employees who request them, including those with family responsibilities.
If a pregnant employee has a temporary disability arising from the pregnancy, ensure she is treated consistently with any other employee with a temporary disability.
Incorporate EEOC's new guidance on FRD into your organization's antiharassment and antidiscrimination training.
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