Earlier this month, the United States Equal Employment Opportunity Commission (EEOC) published suggested best practices for companies to minimize the chance of violating the rights of employees who are also caregivers. Those suggested practices supplement the guidelines the EEOC issued in 2007 regarding when it is unlawful for an employer to discriminate against an employee who is a caregiver.
Although there is no law in New York or New Jersey which expressly prohibits discrimination against employees because they are caregivers, many state and federal laws provide protection to caregivers under certain circumstances. For example, the New Jersey Law Against Discrimination, the New York Human Right Law, the Family & Medical Leave Act (FMLA), the New Jersey Family Leave Act, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA) all provide some protection to caregivers.
The EEOC's 2007 guidelines regarding employees with caregiving responsibilities recognize that, in part due to anti-discrimination laws, women now make up nearly half of the workforce in the United States. In addition, while the role of men as caregivers has substantially increased over the past 50 years, women still disproportionately have the primarily responsibility for caring for children and elderly parents, in-laws, and spouses. As a result, employment practices that disfavor caregivers disproportionately harm women.
The EEOC guidelines also recognize that many women in the work force face a "maternal wall" or "glass ceiling," largely as a result of their dual roles as employees and caregivers, but also due to other gender stereotyping and discrimination. For example, women are drastically underrepresented in corporate management. Gender discrimination, such as discrimination based on the assumption that women are less dedicated to their jobs because they are more likely to be primary caregivers, violates New York, New Jersey federal anti-discrimination laws.
The EEOC's guidelines provide many examples of evidence of discrimination against women based on the gender stereotype that they are more likely to be caregivers, including whether the employer (1) only asks female applicants if they are married or have young children (2) makes stereotypical or derogatory comments about pregnant women or working mothers, (3) treats women less favorable soon after it becomes aware they are pregnant, (4) assigns women with caregiving responsibilities to less prestigious or lower-paid jobs, or (5) treats men with caregiving responsibilities less favorably than female caregiving employees.
The guidelines further recognize that it violates the law to make employment decisions based on assumptions and stereotypes about women as caregivers. The EEOC mentions many common negative assumptions and stereotypes about women in the workplace, including the assumption that (1) women are less reliable because of childcare responsibilities, (2) female employees with children do not work long hours and are less committed to their jobs, (3) working mothers do not want to relocate to another city, (4) mothers do not want to work full time, and (5) pregnant women are less committed to their job or are unable to perform certain physical tasks. While employers are not permitted to make employment decisions based on discriminatory assumptions about women, it is generally not unlawful to make decisions based on an employee's actual job performance or limitations, even if the job performance is unsatisfactory or the limitations are due to the employee's caregiving responsibilities.
Employers can also violate the law by treating male caregivers worse than female caregivers. For example, it can be unlawful for a company to provide job flexibility to women to accommodate their caregiving responsibilities, but not to offer the same flexibility to similarly situated men.
The EEOC guidelines also discuss unlawful harassment of caregivers, and unlawful retaliation against individuals who oppose discrimination, including the fact that it is impermissible to retaliate against a woman who objects to gender stereotyping. In addition, they discuss the fact that the ADA protects many caregivers since it is unlawful to discriminate against employees due to their relationship or association with a disabled individual, including employees who care for a disabled child, spouse, or parent.
In contrast to the EEOC's 2007 guidelines, its May 2009 suggested best practices go beyond what is legally required, and instead suggest proactive and progressive corporate policies and practices. According to the EEOC, implementing its suggested policies is likely to enhance productivity, reduce absenteeism, reduce costs, improve employee retention, and otherwise increase profits. The EEOC's suggest numerous best practices, including:
- Training managers about the legal obligations regarding employees with caregiving responsibilities;
- Developing, disseminating, and enforcing a strong Equal Employment Opportunity (EEO) policy;
- Responding to complaints of discrimination efficiently and effectively;
- Protecting against retaliation;
- Seeking out job candidates with caregiving responsibilities;
- Removing barriers to individuals who are returning to work from leaves of absence;
- Encouraging employees to request flexible work arrangements;
- Making overtime as family-friendly as possible; and
- Reassign job duties employees are unable to perform due to pregnancy or caregiving responsibilities.