Employees
today are often beset with multiple caregiving responsibilities for
children and aging parents. In recognition of the challenges
faced by the so-called sandwich generation, the U.S. Equal Employment Opportunity Commission
(EEOC) recently issued a new guidance for employers detailing best
practices to prevent illegal discrimination against these employees.
Dubbed
"Employer Best Practices for Workers with Caregiving Responsibilities,"
the guidance supplements the EEOC's 2007 guidance on this topic and
provides suggestions for employers who wish to avoid incurring
discrimination claims by employees who act as caregivers for a spouse,
child, parent, older family member, injured service member or for a
relative with a disability.
The EEOC's goal in issuing the guidance is to educate employers about ways to eliminate barriers to equal employment opportunity
faced by caregivers and avoid running afoul of the job bias
statutes. The guidance is published on the EEOC's website.
Click here to read the the guidance. EEOC Best Practices
Technically, caregivers are not a recognized so-called protected class under federal or California law.
Therefore, employers are under no legal compulsion to adhere to
these suggestions. However, caregivers often are subjected to
behavior which does run afoul of existing laws barring discrimination,
harassment, or retaliation on the basis of gender, race, disability, or
other protected bases.
Therefore,
even though there is no specific claim of caregiver discrimination,
these other laws do allow employees to file suit. Therefore,
employers should heed EEOC's directions.
The
EEOC's best practices are divided into three categories: General;
Recruitment, Hiring and Promotion; and Terms, Conditions and Privileges
of Employment. Each is discussed below.
General Practices
The
EEOC recommends training all people managers about the Company's legal
obligations toward caregivers under federal job bias laws such as Title VII, the Americans with Disabilities Act,
and the Family and Medical Leave Act. If an existing EEO policy
does not already address caregiver discrimination, EEOC suggests that
you update the policy.
Among the things to cover:
• describe
the common stereotypes or biases about caregivers that could lead to
discriminatory employment decisions. These include such topics as
assuming that female employees who work part-time are less committed to
their jobs than males or assuming male employees should not undertake
significant caregiving obligations;
• give
examples of prohibited conduct regarding caregiving responsibilities,
such as failing to hire or promote an employee based on the
individual's caregiver responsibilities or eliminating an employee's
significant work responsibilities because of perceived conflicts
between work and the employee's family responsibilities;
• prohibit retaliation for reporting discrimination or harassment based on caregiving responsibilities; and
• identify
an individual in the Company to contact in the event an employee
believes he or she may have suffered caregiver discrimination.
As
with other instances of alleged illegal discrimination and harassment,
employers should promptly and effectively respond to complaints of
caregiver discrimination and document all steps taken to deal with the
matter.
Recruitment, Hiring, and Promotion Best Practices
In
the area of recruitment and hiring, EEOC suggests that employers focus
on an applicant's qualifications for a job and not on the individual's
family or other caregiving-related matters. Interviewers and
hiring executives should avoid any questions about caregiving
responsibilities since the information is not relevant to most
jobs. Where a strong connection can be made (e.g., jobs that
require late hours, irregular hours and/or frequent travel), the
interviewer must allow the applicant to explain how he or she plans to
deal with such contingencies and take the applicant at his or her word
if the applicant pledges that such responsibilities will not interfere
with obligations at work.
According to EEOC, to do otherwise would open up the employer to a claim for alleged gender stereotyping, for example.
EEOC
also suggests that businesses develop specific, job-related
qualifications that reflect the duties and functions of the
position. This will help ensure that employment decisions are
based on an applicant's qualifications. It will also minimize the
potential for gender stereotyping and other unlawful discrimination
against caregivers.
The
EEOC also suggests specifically targeting individuals with caregiving
responsibilities as part of the Company's recruitment efforts by, for
example, advertising positions in parenting magazines and other publications directed to caregivers.
Another
strategy would be to identify and remove any barriers to re-entry into
the workplace for those individuals who have taken time off for
caregiving responsibilities. Toward this end, EEOC cautions that
instead of focusing on the periods of absence, employers should focus
on the person's work experience and accomplishments and attribute the
same importance to cumulative relevant experience as would be given to
employees with uninterrupted service.
In
the area of promotions, EEOC suggests that employers make certain that
all job openings and promotions are communicated to all eligible
employees, regardless of caregiving responsibilities. Promotions
and other employment decisions should also be well documented.
Terms, Conditions, and Privileges of Employment Best Practices
The
guidance contains a long list of practices an employer may implement to
help avoid caregiver discrimination claims. For example,
employers can monitor compensation practices and performance appraisal systems for patterns of potential discrimination against employees with caregiving responsibilities.
EEOC
also recommends reviewing workplace policies such as fixed work hours
or mandatory overtime that limit employee flexibility. The
objective of this review is to confirm that the policies are absolutely
necessary to business operations.
Along
these lines, EEOC goes so far as to encourage employees to request
flexible work arrangements that allow them to balance work and family
responsibilities and to ensure that managers do not discourage
employees from seeking them or penalize those employees who do.
Although
employers are not required to implement these best practices, EEOC's
renewed attention to the issue of caregiver discrimination shows that
the Commission views this as a significant growing legal concern.
Prudent employers will take steps now to make sure that policies and
procedures adequately protect the rights of caregivers and that
supervisors and managers are well trained to recognize potential legal
issues when talking with employees about such matters and making
employment decisions that may adversely impact caregivers.
Your contact at the Firm is available to assist you with any questions or to review your company's policy.
