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“Family Responsibility” Discrimination: The EEOC Weighs in on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities

Labor and Employment Law

On May 23, 2007, the Equal Employment Opportunity Commission (EEOC) issued, “Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” Although the enforcement guidance is not binding legal authority, it will be followed by all EEOC offices to resolve charges raising such issues. Further, courts will consider the enforcement guidance as persuasive authority in interpretation of statutory provisions and it will be an important resource for courts addressing the latest trend in discrimination law, the theory of “family responsibility” discrimination. Thus, it is imperative for employers to be aware of the circumstances in which the EEOC will find a violation of Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990.

Of course, neither Title VII nor the ADA prohibit discrimination against caregivers per se, which the enforcement guidance recognizes. Accordingly, the enforcement guidance could not, and does not, create a new protected category of caregiving employees. However, stereotyping and other disparate treatment of caregivers may violate the prohibition against gender, race, or national origin discrimination in Title VII or the prohibition against discrimination based on an employee’s association with an individual with a disability in the ADA. The enforcement guidance identifies those situations in which the EEOC will find a violation of Title VII or the ADA.

Disparate Treatment of Female Caregivers
It is important to understand that Title VII prohibits intentional discrimination on the basis of a protected characteristic, i.e., race, color, national origin, gender (sex), or religion. Because caregiving is not a protected category under Title VII, the enforcement guidance states that “it is essential that there be evidence that the adverse action taken against the caregiver was based on sex” (emphasis added). For example, a requirement that a female caregiver adhere to an attendance policy that is uniformly applied to both male and female employees does not constitute disparate treatment in violation of Title VII, although it may be more difficult for the female caregiver to meet the policy. Because Title VII is an antidiscrimination statute, it does not require accommodations for caregivers, female or male.

The enforcement guidance provides that “intentional sex discrimination against workers with caregiving responsibilities may be proven using any of the types of evidence used in other sex discrimination cases.” Title VII cases generally categorize evidence as either circumstantial or direct. Circumstantial evidence suggests that an adverse employment action was based on a protected category. On the other hand, direct evidence establishes disparate treatment on the basis of a protected category without inference or presumption.

According to the enforcement guidance, in this context, circumstantial evidence may consist of comparative evidence that women were subjected to less favorable treatment after they had a baby, despite the absence of a decline in work performance, or that comments were made by company officials about the reliability of working mothers. Although not addressed in the enforcement guidance, direct evidence would be a statement by the company official in charge of the employment decision that it was made on the basis of a protected characteristic. For instance, “Fire Cheryl. Although fathers are okay, I do not want mothers working here.” Whether evidence is circumstantial or direct, it must establish that the adverse action was taken against the employee on the basis of a protected characteristic, rather than a lawful factor.

The enforcement guidance lists 10 types of evidence that may be relevant to establish the employee was subjected to unlawful discrimination:

1) Whether the employer asked female applicants, but not male applicants, whether they were married or had young children, or about their childcare and other caregiving responsibilities.
2) Whether decisionmakers or other officials made stereotypical or derogatory comments about pregnant workers or about working mothers or other female caregivers.
3) Whether the employer began subjecting the charging party or other women to less favorable treatment soon after it became aware that they were pregnant.
4) Whether, despite the absence of a decline in work performance, the employer began subjecting the charging party or other women to less favorable treatment after they assumed caregiving responsibilities.
5) 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.
6) Whether the employer steered or assigned women with caregiving responsibilities to less prestigious or lower paid positions.
7) Whether male workers with caregiving responsibilities received more favorable treatment than female workers.
8) Whether statistical evidence shows disparate treatment against pregnant workers or female caregivers.
9) Whether the employer deviated from workplace policy when it took the challenged action.
10) Whether the respondent’s asserted reason for the challenged action is credible.

Clearly, employers must be aware of these 10 questions and ensure that negative answers are provided to the first nine inquiries, while a positive response is applicable to the tenth. The enforcement guidance discusses the specific circumstances in which these questions may arise, which are addressed below.

Disparate Treatment of Female Caregivers as Compared with Males — Consistent with the EEOC’s identification of relevant evidence, the enforcement 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” (emphasis added). Thus, discrimination against working mothers is prohibited by Title VII, even if the employer does not discriminate against childless women. Of course, the unstated assumption is that working fathers are not subjected to similar discrimination. If so, then the discrimination is not based on sex, but the fact of parenthood, and there is no Title VII violation.

The enforcement guidance gives an example of a mother with two preschool age children, who is rejected for an executive training program. However, the mother had more managerial experience or better performance appraisals than several selectees and was bettered qualified than some selectees. In addition, the only selectees with preschool age children were men. Under these circumstances, the mother was subjected to discrimination on the basis of sex. However, if both working mothers and working fathers are treated in a similar unfavorable manner as compared to childless workers, there would be no Title VII violation.

Tip: Employers should make sure that working mothers are treated equally as compared to male employees in similar circumstances. Any policy, selection guidance, etc., must be applied uniformly to working mothers as it would be applied to working fathers. In addition, employers should be aware that, if appropriate circumstances exist, it is lawful under Title VII to discriminate in favor of childless workers. However, before taking any such action, employers should contact counsel to inquire about state or local requirements.

Title VII does not permit employers to treat female workers less favorably merely on the gender-based assumption that a particular female worker will assume caretaking responsibilities or that such responsibilities will interfere with work performance. Stereotyping that female caregivers should not, will not, or cannot be committed to their jobs, that is the basis of an employment decision, violates Title VII.

Gender-based Assumptions About Future Caregiving Responsibilities —The enforcement guidance provides an example of a woman who is unlawfully rejected for a marketing assistant job, where the interviewer commented that he was concerned about hiring a young married woman, who might have kids, which was not compatible with a fast-paced business environment.

According to the employer, it reposted the position, because it was not satisfied with the experience level of the applicants, but the rejected candidate had as much experience as other individuals hired as a marketing assistant.1

Tip: Interview questions should focus on the qualifications of the candidate for the position and the candidate’s ability to perform job requirements. While it is acceptable to question the candidate’s ability to devote necessary hours, a decision may not be based on a stereotypical assumption that a working mother or a wife will not be able to meet these requirements. Of course, an employer may consider an employee’s absence from work as a factor in hiring and promotion decisions, even if the absence is for the purpose of childcare and raising a family.

Assumptions About Work Performance of Female Caregivers —The enforcement guidance posits that employers may make stereotypical assumptions that women with young children will (or should) not work long hours and that new mothers are less committed to their jobs than they were before they had children. Relying on these stereotypes, employers may deny female caregivers opportunities based on assumptions about how they might balance work and family responsibilities. Decisions based on sex-based assumptions or speculation, rather than on the specific work performance of a particular employee, violate Title VII.

The enforcement guidance outlines two examples of unlawful assumptions and stereotyping of women. In the first example, a police detective adopts a child and continues to work the same hours and close the same number of cases. However, her supervisor pointed out that none of her superiors were mothers and removed her from high-profile cases, assigning her smaller, more routine cases. In the second example, an assistant professor takes advantage of a flexible work program that allows employees to take leave for a year without penalty. Upon her return from caring for her father for six months, although there was no evidence of a decline in work performance, the assistant professor received lower performance evaluations and was denied tenure by the dean, who had a history of criticizing female faculty members who take time off and commented that “she’s just like the other women who think they can come and go as they please to take care of their families.”

As to both examples, it is important to understand that there was no evidence of a drop in performance by either female, which would justify an adverse action. Because Title VII does not require accommodation of working mothers, neither employer would have been required to lessen job responsibilities, although it may have been more difficult for a caregiver to meet such requirements. Employment decisions that are based on actual work performance, rather than assumptions or stereotypes, do not violate Title VII, even if the unsatisfactory work performance is attributable to caregiving responsibilities.

Further, as to the first example, the employer could have a policy thatboth working mothers and fathers are removed from high-profile cases, which would not violate Title VII,2 and, as to the second example, the employer could have a policy that both males and females who utilize the flexible work program are removed from tenure consideration for a period of time. However, in both examples, the employer violated Title VII by making assumptions only as to a particular female employee based on gender stereotypes, without taking into account her actual performance.

“Benevolent” Stereotyping
The enforcement guidance suggests that employers may make adverse employment decisions that are well-intentioned based on gender stereotypes. However, adverse actions based on sex stereotyping violate Title VII, even if the employer is not acting out of hostility.

The enforcement guidance offers two examples of benevolent stereotyping. In the first, a CPA at an accounting firm tells her boss that she has become the guardian of her niece and nephew. The boss, concerned about the CPA’s ability to balance her responsibilities and her health, reassigns the CPA from lead roles to supporting roles on smaller accounts to allow her more time to spend with her family. The CPA is then denied a pay raise, because she did not work on bigger accounts. In the second example, a mother is denied a promotion, because she would be forced to work away from home during the week. The employer felt it was unfair to the mother’s children for her to work so far from home. In each example, there was no hostility toward the female employee, but the employer violated Title VII in basing its decision on stereotypical assumptions of, in the first example, what would be best for the female, and, in the second example, how the female should act as a mother.

Again, however, note that an employer would not violate Title VII in these examples if males were subjected to the same policies. Without violating Title VII, an employer may have a policy that male and female guardians are reassigned to smaller accounts to allow more time for child care, and an employer could have a policy that mothers and fathers are not given assignments that would take them away from their children during the week. In each case, there would be a uniform policy applied equally to both males and females.3

However, in these hypotheticals, the employers violated Title VII by applying gender-based stereotypes only to a female employee of what would be best for a female employee, and how a female employee should act, without consideration of the individual circumstances of each female employee.

Promotions, job assignments, and other employment decisions must be based on legitimate criteria and demonstrated performance by the particular employee. A policy may discriminate between those employees who actually take off long periods of time to raise children and those who either do not have children or who are able to raise them without an appreciable career interruption. However, regardless of whether the employer is acting out of hostility, it may not act on incorrect assumptions and stereotypes concerning the impact of caregiving responsibilities on working females’ performance and commitment to the job.

Stereotyping Effect on Subjective Assessment of Work Performance
The enforcement guidance theorizes that gender stereotypes of caregivers may broadly affect perceptions of a worker’s general competence. The enforcement guidance advises investigators to be attentive to evidence of the following: 1) changes in an employer’s assessment of a worker’s performance that are not linked to changes in actual performance and that rise after the worker becomes pregnant or assumes caregiving responsibilities; 2) subjective assessments that are not supported by specific objective criteria; and 3) changes in assignments or duties that are not readily explained by nondiscriminatory reasons.

The EEOC illustrates an example of such stereotyping that results in a Title VII violation. A marketing executive is up for a promotion shortly after she becomes the primary caregiver for her two young grandchildren. However, she arrives a few minutes late to a meeting. Although her male colleague regularly arrives late to meetings, the executive is passed over for the promotion in favor of the male colleague. The decisionmaker states that she would not promote someone who arrived late to sales meetings and that the male colleague is much more dependable.

Tip: The above example is a clear case of disparate treatment. Decisions as to female employees who are caregivers should be based on neutral, objective assessments of work performance, and other specific, objective criteria. Any changes in terms, conditions, or privileges of employment, or other employment decisions must be capable of explanation through legitimate, nondiscriminatory reasons.

Pregnancy Discrimination
The Pregnancy Discrimination Act amended Title VII’s prohibition against sex discrimination to include a prohibition against employment decisions based on pregnancy, even when generally an employer does not discriminate against women. Further, Title VII prohibits an employer from basing an adverse employment decision on stereotypical assumptions about the effect of pregnancy on an employee’s job performance, regardless of whether the employer is acting out of hostility.

Because of the prohibition on pregnancy discrimination, the EEOC flatly states that “employers should not make pregnancy-related inquiries. The EEOC will generally regard a pregnancy-related inquiry as evidence of pregnancy discrimination where the employer subsequently makes an unfavorable job decision affecting a pregnant worker.”

In addition, pregnancy testing implicates the ADA, which restricts use of medical examinations of current employees to those that are job-related and consistent with business necessity. Thus, “the [c]ommission strongly discourages employers from making pregnancy-related inquiries or conducting pregnancy tests.”

Further, “an employer may not treat a pregnant worker who is temporarily unable to perform some of her job duties because of pregnancy less favorably than workers whose job performance is similarly restricted because of conditions other than pregnancy.” Thus, an employer must provide similar benefits for pregnancy as is provided for other temporary medical conditions.

The EEOC sketches two examples of pregnancy discrimination. In the first example, although the female employee only missed two days of work due to a pregnancy-related illness, her employer put her on an unpaid leave of absence, telling her that she could return to work only after she had delivered her baby. Because the female employee had only missed one other day of work, the decision to put her on an unpaid leave of absence for attendance issues was based on a stereotype of pregnant women as poor attendees, and it violated Title VII.4 In the second example, the employer refused to reassign job responsibilities for a pregnant employee, although it did make similar accommodations for a man who injured his arm in automobile accident and for a woman who had undergone surgery for a hernia.

Tip: Employers should not generally make pregnancy-related inquiries or conduct pregnancy tests, unless needed for a specific occupational health reason. Employers should provide similar accommodations and benefits for pregnancy as for other temporary medical conditions. In addition, employers should base decisions regarding pregnant employees on the specific circumstances applicable to the particular female employee and should not take actions based on an assumption or stereotype of pregnant employees. Finally, employers may apply uniform policies to pregnant employees, because the PDA does not require employers to treat persons affected by pregnancy better than others.

Discrimination Against Male Caregivers
The enforcement guidance observes that “while employers are permitted by Title VII to provide women with leave specifically for the period that they are incapacitated because of pregnancy, childbirth, and related medical conditions, employers may not treat either sex more favorably with respect to other kinds of leave, such as leave for childcare purposes.” Thus, employers must “distinguish between pregnancy-related leave and other forms of leave to ensure that any leave only provided to women is limited to the period that women are incapacitated by pregnancy and childbirth.”

Included in the enforcement guidance as examples are a male teacher who is denied leave to care for his newborn son, although women are provided such leave, and a male technician who is denied reassignment to a part-time position to care for his two-year-old daughter because the employer has held it open in case it is needed by a female technician.

Employers should also be aware that male employees have stated claims under Title VII when treated adversely on the basis of being the spouse of a pregnant employee. Because only male employees could be terminated because of bias against a pregnant spouse, they are adversely affected because of their gender.

Tip: Employers must extend the same childcare leave to males that is provided to females. Further, employers must allow the same part-time positions and other terms, conditions, and privileges of employment for male employees as are provided to female employees. Finally, males should not be subjected to adverse action because of an assumption about their responsibilities toward their pregnant spouse.

Discrimination Against Women of Color
The enforcement guidance postulates that women of color may be subjected to intersectional discrimination that is specifically directed toward women of a particular race or ethnicity, rather than toward all women, or they may be subjected to discrimination based both on stereotypical notions of working mothers, as well as hostility toward minorities generally. With respect to the first situation, the EEOC offers an example of an African-American employee who is denied compensatory time for childcare that had been previously provided to white females in the same position. Regarding the second scenario, the EEOC identifies a Mexican-American server who was reassigned to the kitchen based on the manager’s assumption that customers’ appetites would be spoiled by a pregnant employee and his hostility toward Mexican-Americans.

Tip: These examples are self-evident. Employers may not discriminate against minority caregivers in application of policies and may not subject minority, pregnant women to disadvantageous terms and conditions of employment based on their status.

Unlawful Caregiver Stereotyping Under the ADA
The ADA prohibits discrimination because of the disability of an individual with whom the worker has a relationship or association, such as a child, spouse, or parent. Thus, an employer may not treat a worker less favorably based on stereotypical assumptions about the employee’s ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability. For example, an employer may not refuse to hire a divorced father with sole custody of his son, who has a disability, based on an assumption that caregiving responsibilities will have a negative impact on attendance and work performance.

Tip: Hiring and promotion decisions should be based on the applicant’s qualifications for the job and ability to perform the essential functions of the position. While it is not acceptable to refuse to hire or promote an individual based solely on assumptions and stereotypes regarding an association with an individual with a disability, it is not unlawful to make inquiry as to the applicant’s ability to meet job requirements including bona fide attendance requirements. In the example, specific inquiry should have been made of the father concerning the amount of time that would be required to care for the disability, and what accommodation would be necessary, if any.

Hostile Work Environment
The same standards that govern other forms of harassment also apply to harassment directed at caregivers or pregnant workers because of race, sex, association with an individual with a disability, or other protected category. For harassment to be actionable, the following criteria must be demonstrated: 1) that the harassment was unwelcome; 2) that it was based on a protected characteristic; 3) that it was sufficiently severe or pervasive to create a hostile work environment; and 4) there is a basis for holding the employer liable. Although employers are vicariously liable for supervisory harassment, they are entitled to an affirmative defense that 1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

The enforcement guidance provides examples of employees who return from maternity leave only to be subjected to constant ridicule for having children and becoming pregnant and to disparate terms and conditions of employment. Because the employer in these examples did not take action upon notice of the harassment, a Title VII violation occurred. Finally, the EEOC refers to a situation in which an employee is removed from projects, met with unrealistic time frames, verbally chastised in front of co-workers, and provided with a disparate leave policy after his wife was diagnosed with multiple sclerosis. Again, because the employer did not correct the behavior, there was an ADA violation due to harassment on the basis of association with an individual with a disability.

Tip: As with any claim of harassment, employers must disseminate and publish a specific antiharassment policy that prohibits all forms of harassment and provides multiple avenues of reporting the prohibited conduct. In addition, upon notice of harassing conduct, employers must take prompt, remedial action to stop the harassment, correct its effects, and ensure that it does not recur. Finally, managers and employees should be trained that comments concerning pregnancy or caregiving responsibilities may result in unlawful harassment.

Conclusion
The theories of discrimination outlined in the enforcement guidance have previously been recognized by courts and should be familiar to most employers. Employers may generally comply with the enforcement guidance by complying with the following directives: 1) provide equal treatment and application of policies and benefits to both genders in similar circumstances; and 2) do not base employment decisions on stereotypes or assumptions, but rather on demonstrated individual performance.

The enforcement guidance is significant in the EEOC’s adoption of specific guidelines, which signals the EEOC’s intent to look very critically at allegations of caregiver discrimination under Title VII and the ADA. In addition, not addressed in the enforcement guidance, but certainly critical to the resolution of any caregiver question, is coverage of the Family and Medical Leave Act to the applicable circumstances.

Consequently, employers should take this opportunity to review their policies and procedures to ensure compliance with all statutory and regulatory requirements.

The EEOC’s enforcement guidance may be found at www.eeoc.gov/policy/docs/caregiving.html.

1 Note that if the employer simply rejected both married males and females based on an assumption of childcare responsibilities, then this would not violate Title VII’s prohibition against gender discrimination, but would violate state and local laws that prohibit discrimination on the basis of marital status.
2 Such a policy would not violate state or local laws’ prohibitions on marital status discrimination, being based on the status of parenthood. Of course, such a policy would have a negative impact on employee relations and would not be adopted without serious consideration.
3 Again, such policies, although lawful, would not be adopted without consideration of the impact on employee relations.
4 Because an employer may apply a uniform attendance policy to pregnant employees under Title VII, the unstated assumption is that the three absences did not violate such a policy. Of course, the FMLA may apply to protect these absences as well.

Scott T. Silverman is of counsel at Greenberg Traurig in Tampa, where in concentrates in the area of management labor and employment law practice, with an emphasis on traditional labor law, covenant not to compete, and other complex matters. He received his J.D. from Washington University and is a member of the Labor and Employment Law Section and the Hillborough County Bar Association.

This column is submitted on behalf of the Labor and Employment Law Section, Stephen Allen Meck, chair, and Frank E. Brown, editor.

Labor and Employment Law