Employment Discrimination on the Basis of Caregiving Status?

In Late May, the US Equal Employment Opportunity Commission ("EEOC") held a public meeting on employer best practices to achieve work/life balance and issued a guidance document entitled Unlawful Disparate Treatment of Workers with Caregiving Responsibilities on how agency-enforced laws apply to workers with caregiving responsibilities. Before anyone gets any ideas, there's a hitch.

Specifically noted in the EEOC statement is that they're not creating a new protected class of "caregiver," but did highlight practices and policies that could violate existing statutes granting employment rights when decisions are made because employees have caregiving responsibilities. In the EEOC press release, agency Vice Chair Leslie E. Silverman was quoted as saying, "with this new guidance, the Commission is clarifying how the federal EEO laws apply to employees who struggle to balance work and family."

Essentially, the EEOC has articulated the concept that certain actions will have the tendency to violate existing labor law and given guidance toward unwittingly violating those laws. While not groundbreaking in and of itself - the actions they highlight are bad practice anyway - caregiver bias/discrimination suits are a growing legal trend with increasingly favorable settlements and verdicts.

Changing Demographics. As the demographic make up of the workplace changes, the concerns of the workplace change. More mothers are entering the workforce, and the EEOC notes because of this, that entire families now have conflicts over work and family responsibilities. Lower paid workers are disproportionately people of color and are more likely to face discipline around violations of policies such as mandatory overtime while they tend to these familial obligations. Men are also increasingly taking up the role of caregiving, and working moms are increasingly relying on dad, forcing those work/life balancing for men as well.

Generational Concerns. 15-20 years ago, members of Generation X (generally regarded as those born between 1961 and 1981, although as with other such boundaries these dates are fluid) were considered "slackers" who rejected the work ethic. As this generation ages, what was considered a rejection of work and slacking was a profound shift in what work was meant to accomplish and the increased importance of family.

According to the Chartered Institute of Personnel and Development (UK) Generation X place a high prior on personal and family-related goals: 84% of the respondents stated that it was extremely important to them to have a loving family, 72% indicated that it was extremely important to have a relationship with a significant other, while 79% responded that it was extremely important to enjoy life. Work related goals reached in the low 20%. The generation born after 1981 are no less concerned with work/life balance and have demonstrated a willingness to leave their jobs to get it.

While members of Generation X and Generation Y are most likely concerned with childcare, when you add in the elder care concerns of the baby boomers, who by definition are now members of a protected group (those over 40), disparate treatment discrimination can be a daunting issue.

Practical Implications. So as much as employers dislike the federal government's guidance on any Human Resource matter, the EEOC is actually acting in a proactive way to demonstrate to companies slow how to actively avoid getting into trouble.

Discriminating against caregivers generally can lead to allegations of a violation of any or all of the following: Title VII (of the 1964 Civil Rights Act), the Pregnancy Discrimination Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and comparable state laws. Washington DC is the only jurisdiction with a law specifically prohibiting discrimination against adults with caregiver responsibilities.

Companies, Human Resources professionals and managers must make sure their hiring criteria are objective and that decisions on candidates for those positions are based on those objective criteria. For instance, not hiring or promoting a woman with children because she's "less committed to her career" or because she is assumed to have more attendance issues than someone else is a direct route to a discrimination complaint. It is just as discriminatory to not hire a man on the basis of poor ambition because he took a break in his career to raise children.

The best defense against caregiver bias lawsuits is a family-responsive workplace.caregiver bias lawsuits is a family-responsive workplace where policies and procedures are flexible for those who need some level of flexibility to achieve work/life balance.

Sources:

http://www.eeoc.gov/policy/docs/caregiving.html

http://www.eeoc.gov/policy/docs/qanda_caregiving.html

http://www.eeoc.gov/abouteeoc/meetings/5-23-07/haffner.html

http://www.eeoc.gov/press/5-23-07.html

http://www.usatoday.com/news/nation/2006-12-06-gen-next-life-work-balance_x.htm

http://wfnetwork.bc.edu/The_Network_News/08/The_Network_News_Interview08.pdf.

http://www.cipd.co.uk/subjects/wrkgtime/wrktmewrklfbal/worklifeba.htm

http://www.usatoday.com/news/nation/2006-12-06-gen-next-life-work-balance_x.htm