Although no federal antidiscrimination law protects “caregivers,” the EEOC has issued an enforcement guidance designed to address what it considers “an emerging discrimination issue in the 21st century workplace.” See Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, available at: http://www.eeoc.gov. According to the agency, the purpose of the EEOC’s new guidance is not to create a new protected category (which is beyond its authority), but “to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.” Additionally, the EEOC urges employers to establish “best practices” to accommodate caregivers, even if they are not legally required to do so.
The guidance addresses a number of issues, including unlawful disparate treatment of caregivers, unlawful gender role stereotyping of working women, “benevolent” stereotyping, pregnancy discrimination, discrimination against male caregivers, discrimination against women of color, and unlawful caregiver stereotyping under the Americans with Disabilities Act. The guidance also provides a number of hypothetical situations, which employers will likely find helpful.
Expansive View of Discrimination: The EEOC takes an expansive view of discrimination, adopting both the “sex plus” and gender stereotyping theories of establishing discrimination.
Gender Stereotyping: The guidance states that “while comparative evidence is often useful, it is not necessary to establish” intentional sex discrimination. According to the guidance, employees can establish a discrimination claim by showing they were subjected to biased statements or behavior based on stereotypes about working mothers or other female caregivers.
In support of this contention, the EEOC cites Back v. Hastings on Hudson Union Free Sch. Dist., a Second Circuit decision in which a female school psychologist was permitted to proceed with her Equal Protection Clause failure to promote claim based on comments allegedly made by her supervisors, stating, among other things, that they did not think she could “be a good mother and have this job.” In that case, the Second Circuit permitted the employee to proceed even though she did not present any evidence of how men were treated. The court held that “stereotyping of women as caregivers can by itself and without more be evidence of an impermissible, sex-based motive.” (The case was tried to a jury, which ruled in favor of the employer.)
The EEOC acknowledges that other courts have not found illegal sex discrimination in similar cases, but states that it believes claims must be resolved based on the totality of the evidence and that “comments evincing sex-based stereotypical views of women with children may support an inference of discrimination even absent comparative evidence about the treatment of men with children.”
Sex Plus: The guidance states that employment decisions that discriminate against workers with caregiving responsibilities are prohibited by Title VII if they are based on sex or another protected characteristic, regardless of whether the employer discriminates more broadly against all members of the protected class. “For example, sex discrimination against working mothers is prohibited by Title VII even if the employer does not discriminate against childless women.”
Factors The EEOC Will Consider in Evaluating Discrimination Claims:
The guidance lists the following factors as examples of the types of information the EEOC will consider in evaluating discrimination claims:
- Whether the respondent asked female applicants, but not male applicants, whether they were married or had young children, or about their childcare and other caregiving responsibilities;
- Whether decisionmakers or other officials made stereotypical or derogatory comments about pregnant workers or about working mothers or other female caregivers;
- Whether the respondent began subjecting the charging party or other women to less favorable treatment soon after it became aware that they were pregnant;
- Whether, despite the absence of a decline in work performance, the respondent began subjecting the charging party or other women to less favorable treatment after they assumed caregiving responsibilities;
- Whether female workers without children or other caregiving responsibilities received more favorable treatment than female caregivers based upon stereotypes of mothers or other female caregivers;
- Whether the respondent steered or assigned women with caregiving responsibilities to less prestigious or lower-paid positions;
- Whether male workers with caregiving responsibilities received more favorable treatment than female workers;
- Whether statistical evidence shows disparate treatment against pregnant workers or female caregivers;
- Whether respondent deviated from workplace policy when it took the challenged action;
- Whether the respondent’s asserted reason for the challenged action is credible.
Employers’ Bottom Line:
The guidance does not have the force of law, but courts often refer agency publications in addressing discrimination claims. The EEOC’s adoption of the “sex plus” and gender stereotyping theories of discrimination, which have not been widely followed by courts, may indicate an emerging trend in litigation and may lead more courts to adopt these expansive views of discrimination.
In addition to the potential impact on discrimination litigation, the guidance reflects the agency’s position on caregiver claims and how closely these claims will be analyzed. Thus, it is important for employers to be aware of the guidance and to evaluate their employment practices to ensure they are in compliance with the law, before a charge or discrimination lawsuit is filed.
If you have any questions regarding the new guidance or any other labor or employment related issue, please contact the Ford & Harrison attorney with whom you usually work.
Kathryn Siegel, a summer associate in Ford & Harrison’s Atlanta office, assisted in the preparation of this article. Kathryn is a law student at Vanderbilt University and will graduate in 2008. •