EEOC Supplements Its 2007 Guidance Regarding Caregiver Discrimination

In 2007, during a nationwide upsurge in pregnancy discrimination claims, the Equal Employment Opportunities Commission (EEOC) released a set of guidelines advising employers on issues related to caregiver bias. On April 22, 2009, the EEOC supplemented those guidelines with specific recommendations designed, the federal agency said, to help employers to “reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity.” The technical assistance document, Employer Best Practices for Workers with Caregiving Responsibilities, can be found on the agency’s website at www.eeoc.gov/policy/docs/caregiver-best-practices.html.

General

The caregiving responsibilities addressed in the EEOC’s recent guidance include not only child care, but caring for parents and older family members, as well as relatives with disabilities. The EEOC’s guidance directs employers to:

• Develop, disseminate, and en-force a “strong EEO policy” that addresses the types of conduct that may constitute unlawful discrimination against caregivers;
• Train managers to recognize the legal obligations created by anti-discrimination statutes and ensure com-pliance with policies that support those obligations;
• Respond to complaints of care-giver discrimination efficiently and effectively; and
• Provide clear assurance to employees with caregiving responsibilities of protection from retaliation for such complaints.

Areas Of Concern

The “best practices” guidance also addresses issues related to the recruitment, hiring, and promotion of employees with caregiving responsibilities, and includes specific recommendations in those areas. For instance, the EEOC suggests developing specific job-related qualification standards for each position, which reflect the duties, functions, and competencies of the job. Such standards can help to minimize the potential for gender stereotyping which, in turn, will minimize the opportunity for caregiver discrimination.

Another area addressed in the EEOC’s guidance is avoiding discriminatory treatment of caregivers through the “terms, conditions, and privileges of employment.” Specifically, the federal agency suggests monitoring compensation practices for patterns of potential discrimination, and reviewing workplace policies that limit employee flexibility. The “best practices” in this area include providing flexible and reduced-time options.

Several examples offered by the EEOC in this area include: seeking volunteers first for overtime and then, if necessary, require employees to sign-up for any remaining shifts; ensuring that all employees, including employees who work part-time or have flexible work schedules, are eligible to receive awards and recognition for their achievements; scheduling all-employee meetings and events on “core days” when employees who work flexible schedules are in the office and able to attend.

While not every example will be suitable for every employer, the guidance certainly informs employers of the expectations of the EEOC with respect to caregiver issues. Such information provides a sense of how these cases will be viewed by the EEOC during its investigation and attempted resolution of discrimination charges in this area.

Many of the suggestions included in the guidance are similar to actions that many employers are reviewing (or have adopted) to assure compliance with other recent employment law developments, including the Lilly Ledbetter Fair Pay Act, the new Family and Medical Leave Act regulations, and the pending Paycheck Fairness Act.

What It Means For Employers

While the EEOC’s technical guidelines are designated as “best practices” – meaning that they are proactive measures recommended by the federal agency and are not statutory requirements – knowledgeable employers recognize that courts turn to the EEOC for direction in interpreting both federal and state anti-discrimination laws. Therefore, it is imperative that companies begin to train managers and supervisors on the content of this most recent guidance, to assure complete awareness of all legal obligations that may have an impact on decisions about treatment of employees with caregiver responsibilities.

Note: This article was published in the May/June 2009 issue of The Employment Law Authority.