EEOC ISSUES ENFORCEMENT GUIDANCE ON WORKERS WITH CAREGIVING RESPONSIBILITIES

Caregiver discrimination has become a prominent issue in the workplace, particularly as women, who continue to act as primary caregiver for both children and elders, now comprise nearly half of the national labor force. A number of laws, including the Family and Medical leave Act, the California Family Rights Act, California's "kin care" statute, and the recent San Francisco sick leave ordinance, expressly prohibit discrimination against caregivers in specific circumstances. Other and older employment discrimination laws, such as Title VII, the Americans with Disabilities Act and the California Fair Employment and Housing Act, do not contain specific provisions regarding discrimination of caregivers. This does not mean however, that an employer who discriminates against an employee based on caregiving status can escape liability under these laws.

In May, the EEOC issued Enforcement Guidance on Unlawful Disparate Treatment of Workers With Caregiving Responsibilities ("Guidance") to assist employers and employees in determining whether discrimination against caregivers constitutes unlawful discrimination under Title VII and the ADA. The Guidance explains that violation of these laws may arise where a worker with caregiving responsibilities is subjected to discrimination based on sex, race, national origin and/or association with an individual with a disability.

Examples of such discrimination include:

• Sex-based stereotyping of working women, such as reassigning a new mother to less desirable projects based on the assumption that she will be less committed to her job;
• Lowering subjective evaluations of a female employee's work performance after she becomes the primary caregiver of a family member, despite the absence of an actual decline in performance;
• Discrimination against male caregivers, such as denying a male employee leave to care for a child under circumstances where leave would be granted to a female employee;
• Discrimination against women of color, based on family stereotypes; and
• Stereotyping based on association with an individual with a disability, such as refusing to hire a worker who is a single parent of a child with a disability based on the assumption that she will be unreliable;

Under the Guidance, employment decisions that adversely affect caregiver employees, and which are based on sexual and/or racial stereotypes violate Title VII, and employment decisions that discriminate against workers with caregiving responsibilities based on their association with an individual with a disability violate the ADA. However, an employment decision that adversely affects a caregiver that is based on the employee's actual work performance, rather than on a protected characteristic, generally will not violate Title VII or the ADA, even if the unsatisfactory work performance is as a result of the caregiving obligations.

Employers can also face liability under Title VII and the ADA under the Guidance if workers with caregiving responsibilities are subjected to offensive comments or other harassment because of their sex, race, or association with an individual with a disability, and the conduct is sufficiently severe or pervasive to create a hostile work environment.

Furthermore, because discrimination against caregivers may violate Title VII and/or the ADA, retaliation against employees who complain about such discrimination may also violate these laws. The Guidance notes that caregivers may be particularly vulnerable to retaliation because of the challenges they face in balancing their responsibilities. Title VII and the ADA prohibit any action that would be reasonably likely to deter a caregiver from engaging in protected activity.

Employers must be aware that even if discrimination against a caregiver does not violate Title VII or the ADA, as explained by the Guidance, this conduct might violate FMLA, CFRA, the kin care statute, or the San Francisco sick leave ordinance. Accordingly, before responding to an employee with caregiving responsibilities differently than an employee without those responsibilities, employers should make sure that they are in compliance with all potentially applicable laws, and that they can set forth legitimate, non-discriminatory reasons for the action.