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Lawsuits May Follow New EEOC Guidance on Caregivers
Though the recently issued guidelines from the U.S. Equal Employment Opportunity Commission don't make caregivers a protected group under the law, the EEOC does address an emerging discrimination issue. More litigation may result.
New guidelines issued by the U.S. Equal Employment Opportunity Commission aim to help employers, employees and commission staff determine whether discrimination against workers with caregiving responsibilities constitutes unlawful disparate treatment under federal law. More than 50 million people provide care for a chronically ill, disabled or aged family member or friend during a given year, according to a study by the U.S. Department of Health and Human Services. Family caregivers comprise 13 percent of the American workforce, according to the DHHS. The new guidelines emerged following the testimony of a panel of experts in April before the EEOC regarding the legal issues associated with workers struggling to maintain a reasonable work/life balance. The guidelines offer explanations about the appropriate application of Title VII to work-family conflicts, as well as defining when Title VII applies to discrimination against caregivers, including fathers and women of color. Additionally, the document clarifies the Americans with Disabilities Act prohibition of discrimination against workers because of caregiving commitments. "Disparate treatment based on hostility toward workers who assume caregiving responsibilities is not limited to women, and also impacts men, who face different but equally harmful sex-based stereotypes," says Ernest Haffner, a senior attorney adviser for the EEOC Office of Legal Counsel. Though caregiving responsibilities are typically undertaken by women, they can become the tasks of any worker, as members of the "sandwich generation" care not only for young children, but also aging relatives. "The EEOC's issuance of guidance on this subject makes clear that the agency is taking the problem of caregiver discrimination seriously," says Naomi Schoenbaum, policy counsel for the National Partnership for Women & Families in Washington. Caroline Austin, an attorney in the employment-law department of Wolf, Block, Schorr and Solis-Cohen in Philadelphia, emphasizes that the EEOC guidelines are "very clear that they are not creating a new protected category of working parent." The new EEOC guidelines emerged "to sensitize its own investigators to possible legitimate charges being brought before them to sift through and decide whether they have merit," she says. "Employers would be short-sighted and irresponsible if they didn't read the EEOC guidelines and use them to develop some best practices," Austin says. Ellen Galinsky, president of New York-based Families and Work Institute, says the new EEOC guidelines simply extend the existing regulations to include caregiving. She says employers must be sensitive to the fact that they may not discriminate on the basis of caregiving status. "It's expanded beyond pregnancy to include caregivers." Galinsky says the guidance is likely in response to the number of lawsuits filed with the EEOC with regard to caregiving issues. She says most have been "decided in favor of caregivers." The EEOC reviewed the legal decisions and "made it into a series of guidelines," she says. Whether or not the number of lawsuits increases "will depend on the outreach that's done," she notes. To forestall increased litigation, she says it's important for employers to provide supervisors with specialized training related to caregivers. And it's essential to look for solutions that work for both the employer and the employee. Employers should view flexibility in this area as a strategic business tool to help recruitment and retention, says Galinsky. "Responding flexibly can help employees in many different ways." "This flexibility," Schoenbaum says "may come in many forms -- the ability to leave work early or arrive late to accommodate scheduled or unscheduled caregiving responsibilities, the ability to work from home, or paid sick days that can be used to take care of an ill child or elderly parent." Austin believes the guidelines will increase the number of claims brought by parents with caregiving responsibilities. Schoenbaum disagrees. "This information can assist employers in complying with the law, thereby preventing discrimination and promoting equal employment opportunity -- and it may actually reduce the number of lawsuits," she says. In response to the guidelines, Austin suggests employers should review employment practices to ensure that they comply with the current state of the law. HR may be inadvertently discriminating against employees or be unaware of existing discrimination among managers, she says. "Their practices are going to be under the microscope," Austin says of HR. While she says the new guidelines are a "sign of the times, given that there are many more women in the workforce today than there ever were," it's important that companies remember that more men than ever are "involved in caregiving responsibilities ... . You cannot stereotype against men who want to exercise caregiving responsibilities." Austin says the guidelines provide an ideal time for employers "to look at their employment practices in a global and more narrowed way" to ensure that when workplace practices come under scrutiny, they're not in violation of any law. "More often than not," she says, "Employers want to do the right thing to maximize employee morale and diversity within their workforce."
June 4, 2007 Copyright 2007© LRP Publications |
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