(ekinder@spilmanlaw.com)

Spilman Thomas & Battle, PLLC

Charleston, West Virginia 25321-0273

On average, how many workdays would you think are disrupted because an employee must attend to a family responsibility of some kind? One out of twenty? Maybe one out of ten? Would you believe one in three? According to a report presented recently to the United States Equal Employment Opportunity Commission (“EEOC”), one study has found that “caregiving responsibilities now interrupt one out of every three work days.” See April 17, 2007, Statement of Joan C. Williams before the U.S. EEOC on Perspectives on Work/Life Balance and the Federal Equal Employment Opportunity Laws, at 2. Even if that calculation proves to a bit on the “high side” there is no question that employees are dealing with increasing family-life pressures and employers are facing issues on how best to deal with that pressure in a way that treats all employees sensibly and fairly.

The Dilemma of the Sandwich Generation

Employment rates for women, especially mothers of young children, have grown dramatically over the last few decades. See Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, at 2 (“Enforcement Guidance”). As a result, parents now are forced to “tag team” to juggle work and family; the parents in one of every three American families with a small child work opposite shifts so that one parent can care for the child while the other is at work. See Harriet B. Presser, Toward a 24-hour Economy, 284 SCIENCE 1778, 1778-79 (1999). In addition, more and more members of the workforce are being called upon to care for their aging parents – as many as one in four families must care for an elderly parent. These parental care obligations will likely only grow more time-consuming and unpredictable over time (the exact opposite of child care trends). See Jody Heymann, The Widening Gap: Why America’s Working Families are in Jeopardy and What Can Be Done About It 2 (2000). Consequently, this “sandwich generation” of employees (so named because they are “sandwiched” with caregiving responsibilities for both the generation before them and the generation after) are pressed with family responsibilities for both their parents and children. And this calculation does not even include those families in which one family member has a disability; nearly one third of all families contain a family member with a disability and one in ten families have a child under the age of eighteen who has a disability. See U.S. Census Bureau, Disability and American Families: 2000, at 3, 16.

As the pressure increases, litigation surely follows. Indeed, claims of family responsibility discrimination (or caregiver discrimination) have grown exponentially over the last few years. These claims do not stem from an integrated and unified body of law, but have instead emerged from a soup of cases alleging discrimination under a number of different circumstances and legal theories; one commentator has identified seventeen different statutory theories under which these claims are currently being pursued. See April 17, 2007, Statement of Zachary D. Fasman before the U.S. EEOC on Perspectives on Work/Life Balance and the Federal Equal Employment Opportunity Laws, at 1. Claims cover the array of allegations such as:

● suits by male employees claiming to have been denied leave given to female employees (and vice versa);

● discrimination lawsuits based on the failure to adhere to traditional family stereotypes, such as a male employee alleging discrimination because he sought leave to care for his child or a failure to promote a new mother because “new moms don’t have time for work;” and

● claims of discrimination based on an association with an individual with a disability, such as the failure to hire a woman who is the mother of a young child with a severe disability.

It does not take long to realize that caregiver discrimination is a term that is not amenable to a quick definition or easy summary. Nor does it take long to understand that while nominally a single theory of discrimination, caregiver discrimination is really an offshoot of existing EEO laws.

The EEOC issues Enforcement Guidance

Into this morass waded the Equal Employment Opportunity Commission. The EEOC met on April 17, 2007 to discuss perspectives of work/family balance in the federal equal opportunity laws. A little more than a month later, on May 23, 2007, the EEOC issued an Enforcement Guidance. The Enforcement Guidance is not of the same force of law as even the regulations promulgated by the EEOC; but were issued under the EEOC’s authority to carry out “educational activities.” 42 U.S.C. § 2000e-4(h)(2). Instead, the Enforcement Guidance is more closely akin with the EEOC’s Compliance Manual – a document that guides EEOC investigators when looking into allegations involving caregiver discrimination and, thereby, educating employers and defense attorneys of the EEOC’s thinking in the realm of caregiver discrimination.

No New Protected Class

Maybe the single most important sentence in the Enforcement Guidance is also the first, the EEOC’s acknowledgment that the current federal equal employment opportunity laws “do not prohibit discrimination against caregivers per se.” Enforcement Guidance at 1. (Note that the District of Columbia and Alaska have passed family responsibility discrimination acts and several other states, such as California, ban discrimination based upon marital status.) Instead, the EEOC recognizes in its Enforcement Guidance that “caregiver discrimination” stems from facts that violate either Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990. These legal principles are not new, and a caregiver is protected from discrimination only to the extent the actions impact a protected characteristic that is specifically covered by the EEO laws. Indeed the purpose of the Enforcement Guidance “is not intended to create a new protected category, but rather to illustrate circumstances in which stereotyping or other forms of disparate treatment might violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.” Id. There are other employer obligations that may impact an employee’s caregiving responsibilities, such as the requirements of the Family and Medical Leave Act (which is regulated by the Department of Labor) or under other provisions of state or local law (which would be too numerous for the EEOC to address), but these issues were not addressed by the EEOC.

The EEOC’s Enforcement Guidance is largely expressed through twenty fact-specific examples in which the Commission examines a case and states whether it would, or would not, find a violation of federal law. While some of these examples provide extraordinary circumstances that all employers, and their attorneys, should instantly recognize as impermissible, the examples do provide insight into how the EEOC views the treatment of caregivers under federal employment laws.

Disparate treatment of female caregivers

The case law considering allegations of disparate treatment of female caregivers has developed under the rather unhelpful rubric “sex plus” discrimination, or discrimination based on sex plus some other characteristic. Perhaps the terminology would be better phrased as “sex within” because what courts are truly looking for is discrimination based on sex within an identifiable sub group such as caregivers or working parents. Both the case law and Enforcement Guidance are clear that claims of this type are only actionable where you can prove a disparity in the treatment of the sexes within the subgroup at issue; discrimination of caregivers in general is not actionable. Consequently, disparate treatment claims involving caregivers are analyzed no differently than disparate treatment claims filed by anyone else.

Claims of this type break down into two basic categories: (1) claims that female employees of a certain subgroup (such as caregivers) are treated differently than male employees of the same subgroup (or vice versa); and (2) claims where there is direct evidence by company officials indicating bias against or unfair stereotypes against female employees in the subcategory. Encouragingly, the Enforcement Guidance echoes this analysis and then offers some insight of the evidence EEOC investigators are looking for to support claims.

In the absence of direct evidence, the EEOC instructs its investigators to look for evidence of disparate treatment of working mothers as opposed to working fathers, even where the employer does not discriminate against childless women. The first example given by the EEOC in the Enforcement Guidance describes a rejected candidate for an employer’s executive training program who was the mother of two pre-school aged children. The investigation in the example not only showed that the female who was rejected had more managerial experience and better performance appraisals than several individuals who were selected, but also that she was otherwise better qualified than many of the selectees. The evidence, which the Committee said pointed to discrimination based on sex, showed that while the employer had selected both men and women for the program “the only selectees with pre-school aged children were men.” Enforcement Guidance at 6. Notably, the EEOC said that “Title VII does not prohibit discrimination based solely on parental or other caregiver status, so an employer does not generally violate Title VII’s disparate treatment prescription if, for example, it treats working mothers and working fathers in a similar unfavorable (or favorable) manner as compared to childless workers.” Id. Consequently, mandatory overtime is permissible, despite its impact on caregiving responsibilities, as are policies against telecommuting or requiring uniform enforcement of attendance and leave of absence rules. As long as an employer treats all employees the same – or most importantly employees of both sexes the same – the unfriendliness of the policies on caregiving is not an issue under the Enforcement Guidance.

Stereotyping/Direct Evidence

“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 care taking responsibilities or that a female worker’s care taking responsibilities will interfere with her working performance.” Id., citing Lust v. Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004). These stereotypes include beliefs such as that child care responsibilities will make female employees less dependable than male employees. The Enforcement Guidance’s example here describes a female candidate for a marketing position who was asked how many children she had and how she would balance her work and child care responsibilities when the need arose; male candidates were not asked similar questions. The decision-maker also made statements to the effect that being a mother was incompatible with the position and that the candidate’s belief that she would share child care responsibilities, when they arose, with her husband was unworkable. The EEOC posits that under these facts the decision not to hire the female candidate, even where the employer did not hire a male candidate but instead merely reposted the position, would be sufficient to support a finding of sex discrimination based on the direct evidence that impermissible stereotypes influenced the process. In fact, the Enforcement Guidance cautions that direct evidence of this type would be sufficient to prove that sex was a motivating reason for the employer’s decision, even if the employer prevailed on a mixed motive theory by showing the female candidate would not have gotten the job regardless; the candidate would then be entitled to attorney fees and injunctive relief only. 42 U.S.C. § 2000e-5(g)(2).

These stereotypes are often compounded once a female employee actually begins assuming caregiving responsibilities. These stereotypes include assumptions that mothers with young children either will not or should not work long hours and are less committed to their jobs than they were before they had children. As most employers know, and the Enforcement Guidance makes clear, employment decisions based on such assumptions, as opposed to actual work performance, violate Title VII. Consequently, assigning a new mother more routine and lower profile work (or denying her a promotion) based on assumptions of how new mothers should act in the workplace (or how individuals who take leaves of absence but later return to work should act) violates Title VII. On the other hand, the EEOC articulates that employment decisions based on an employee’s actual work performance are not a violation “even if an employee’s unsatisfactory work performance is attributable to caregiving.” Enforcement Guidance, at 8.

Here, the EEOC provides one of its more telling examples. The Enforcement Guidance discusses a law firm associate who had returned from maternity leave, stating that the associate began missing work frequently because of her difficulty in obtaining child care and was unable to meet important deadlines. As a result, the law firm warned the associate and then transferred her to a different department where she worked on less high profile matters that had less time constraints. According to the EEOC, since the associate was treated comparably to other employees, both male and female, who had missed deadlines or otherwise performed unsatisfactorily, the transfer did not violate Title VII. The take away lesson from this example is that employers should be able to articulate a reason (or reasons) that can be objectively verified for its decisions, as opposed to relying on merely subjective standards which can often mask reliance on stereotypes, in making employment decisions.

The EEOC also indicates that it will investigate for evidence of stereotypes that broadly affect perceptions of a worker’s general competence. Examples would include a perception that female workers who have had children are less capable or skilled than their male counterparts or even childless female employees. The EEOC referred to these stereotypes as placing working mothers in “double bind,” in which the women are “simultaneously viewed by their employers as bad mothers for investing time and resources into their careers and bad workers for devoting time and attention to their families.” Enforcement Guidance at 10. Consequently, evidence that the employer held and acted on these beliefs is enough to support a finding of discrimination. As the United States Court of Appeals for the Second Circuit has stated:

it takes no special training to discern stereotyping in the view that a woman cannot "be a good mother" and have a job that requires long hours, or in the statement that a mother who received tenure "would not show the same level of commitment [she] had shown because [she] had little ones at home." These are not the kind of "innocuous words" that we have previously held to be insufficient, as a matter of law, to provide evidence of discriminatory intent.

Back v. Hastings On Hudson Union Free School Dist., 365 F.3d 107, 120 (2d Cir. 2004) (citations omitted).

Consequently, the EEOC is instructing its investigators to be aware of unconscious bias as reflected in evaluations and to be “particularly attentive” to evidence of:

● Changes in an employer’s assessment that arise after pregnancy or the assumption of care giving responsibilities and are not linked to actual performance;

● Subjective assessments that are not supported by specific objective criteria; and

● Changes in assignments or duties that are not readily explained by non- discriminatory reasons.

Enforcement Guidance, at 11.

The EEOC then contrasts two examples. In the first, a female employee who is also the mother of a young child is viewed as being less dependable, reliable, and committed to her work than a comparable male employee, even though the limited observable evidence would contradict that conclusion. In the second, the mother of two elementary school children was laid off in the reduction in force that resulted in both a male and female employee being kept; the employer here, however, could articulate specific, provable reasons for its decision. The EEOC’s guidance is that the first example, where the decision was based on subjective and unsupportable biases, was a violation of Title VII, while the second example did not violate the law because the employer could articulate non-discriminatory reasons for its decision. The rule for employers is that subjective evaluations that cannot be explained by specific concrete examples are problematic and their use is apparently a point of emphasis for the EEOC.

Pregnancy Issues

In addition to assumptions on child caring responsibilities, employers violate Title VII by making assumptions about the commitment of pregnant workers or their ability to perform certain physical tasks. The EEOC quotes the United States Supreme Court that “women should not be forced to choose between having a child and having a job.” Int’l Union, United Auto, Aerospace & Agricultural Implement Workers of Am. v. Johnson Controls, 499 U.S. 187, 204 (1991). As all employment lawyers know, Title VII’s prohibition against sex discrimination includes a prohibition against employment decisions based on pregnancy even where the employer does not discriminate against women generally. Consequently, employers should not make inquiries to any employees or perspective employees that are pregnancy related because 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.” Enforcement Guidance at 12. (Pregnancy testing, in the event there is any employer foolish enough to do so, would not only violate Title VII, but would also implicate the ADA.) Consequently, the Commission strongly discourages employers from making pregnancy related inquiries or conducting pregnancy tests.

Along these lines, employers must treat pregnant workers, who are temporarily unable to perform non-essential job duties because of pregnancy, identically to other workers whose job performance is similarly restricted because of conditions other than pregnancy. The EEOC specifically provides the example of an employer that provides eight weeks of paid leave for temporary medical conditions and states that leave must be given for pregnancy or pregnancy related medical conditions. The examples provided by the EEOC, both of which were examples of discriminatory behavior in the eyes of the Commission, involved 1) an employer who placed a pregnant employee on leave of absence that she did not request because the employer needed “someone who will be dependable” and because “not working was the best thing for her right now,” and 2) a pregnant machine operator who was restricted by her doctor to a 20 pound weight restriction which her employer refused to accommodate even though lifting duties had been accomodated for other male operators. Employers must treat pregnant employees who need accommodations (or leave or other assistance) exactly as they would treat any other employee who was seeking these accommodations for any other reasons.

Benevolent Stereotypes

The EEOC specifically addressed the impact of so-called benevolent stereotyping, i.e., gender stereotypes that are well-intentioned and perceived by the employer as being in the employee’s best interest, such as assuming that a working mother would not want to relocate or work overtime. Even if the employer’s actions are not intentionally hostile, decisions that are based on this benevolent stereotyping – as opposed to an individual employee’s actual expressed preference – violate Title VII. Examples of decisions made on benevolent stereotypes include transferring a new mother to a lower profile position that has steadier hours so that she can spend more time at home or denying the mother of a young child a transfer to a different office because it would be “unfair” to the children for their mother to work so far away from home. As the Enforcement Guidance articulates, when decisions like these are made without regard to the specific wishes of the employee, or without even consulting the employee, the results are unlawful discrimination. As the United States Court of Appeals for the Seventh Circuit has recognized, even if “[r]ealism requires acknowledgment that the average mother is more sensitive than the average father to the possibly disruptive effect on children of moving to another city, ... the antidiscrimination laws entitle individuals to be evaluated as individuals rather than as members of groups having certain average characteristics.” Lust, 383 F.3d at 583.

Stereotypes against Male Caregivers.

The EEOC also discussed that gender based stereotypes may result in discrimination against male caregivers. “Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibility for men. These mutually reinforcing stereotypes created a self fulfilling cycle of discrimination.” Nevada Dep’t of Human Resources, v. Hibbs, 538 U.S. 721, 736 (2003). Consequently, the EEOC warned that making assumptions about the “proper” role of a working father can lead to the denial of opportunities that may be provided to working women or may subject men who are primary caregivers to harassment or disparate treatment. For instance, requests by male employees for child care leave must be granted or denied for the same reasons as the granting or denial of requests made by female employees. The EEOC does recognize a distinction for leave granted because an employee is incapacitated because of pregnancy, childbirth and other related medical conditions. See California Fed. Sav. & Loan Ass’n v. Guerra, 472 U.S. 272, 290 (1987). But outside of that context, employers may not treat either sex more favorably or less favorably where it relates to child care. “To avoid a potential Title VII violation, employers shall carefully distinguish between pregnancy related leave and other forms of leave, insuring that any leave specifically provided to women alone is limited to the period that women are incapacitated by pregnancy and childbirth.” (The EEOC noted this period will include the post partum period that a woman remains incapacitated as a result of having given birth.) Enforcement Guidance at 14. The EEOC’s examples of discrimination here involved employers who denied male employees unpaid child care leave and a part time position out of a belief that male workers should not be primary caregivers.

Disability Stereotypes

Outside the Title VII context, there are also stereotypes that may result in discrimination based on the ADA. Under the ADA, discrimination is prohibited where an individual with whom the worker has a relationship or association has a disability. 42 U.S.C. § 12112(b)(4). Consequently, an employer may not treat an employee any less favorably based upon what the employer assumes to be the worker’s ability to successfully juggle job duties and care giving. For example, an employer may not refuse to hire an individual who is married to, or is the sole parent of, an individual with a disability that requires extensive care. An employer cannot base a hiring decision on an assumption that such an individual will not be able to meet any job requirements based on regular attendance without violating the ADA. What the employer can do is ask all candidates if they can meet the essential duties of a job, including regular attendance. The employer may also discipline an employee for failing to meet those job duties, provided the employer factors in its responsibilities under the FMLA.

Hostile Work Environment

Along with overt discrimination, the EEOC cautions that hostile work environments may be created where employees with care giving responsibilities are subjected to offensive comments based on protected characteristics. The Enforcement Guidance discusses examples such as comments directed at a new mother that she would no longer be dedicated to her job (especially where the comments were connected with contemporaneous increases in job monitoring and other statements), comments made to an individual who has become pregnant regarding her condition coupled with granting special favors – such as time off – to the employees who “covered for the pregnant employee,” or comments that an employee is no longer dedicated and cannot be counted on because of the employee’s need to care for a spouse with a disability. The EEOC has now specifically recognized that the hostile work environment under these circumstances can create a cause of action.

Retaliation

Just in case there were any doubts, the EEOC closes by cautioning that retaliation against individuals who oppose unlawful care giver discrimination is as unlawful as it would be for opposing discrimination in any other context. Specifically, the EEOC notes that caregivers “may be particularly vulnerable to unlawful retaliation because of the challenges they face in balancing work and family responsibilities. An action that would be likely to deter a working mother from filing a future EEOC complaint might be less likely to deter someone who does not have the substantial care giving responsibilities.” Enforcement Guidance, at 18. Along those lines, “schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school aged children.” Burlington Northern & Santa Fe Ry. Co. v. White, ___ U.S. ___, 126 S. Ct. 2405, 2415 (2006). Thus, schedule changes which may be reasonably likely to deter a working mother or other care giver from engaging in protected activity will be held to be illegal retaliation. Along these lines, the Enforcement Guidance also cautions that caregiver discrimination may impact women of color to an even greater extent that non-minorities because of “intersectional discrimination that is specifically directed toward women of a particular race or ethnicity, rather than toward all women, resulting, for example, in less favorable treatment of an African-American working mother than her White counterpart.” Enforcement Guidance, at 15.

Family Friendly Workplace Options

While not requiring these changes, the EEOC does hope that employers will use the issuance of the Enforcement Guidance as a springboard for implementing policies to relieve the growing pressure on employees to take care of family responsibilities. While neither existing laws nor the Enforcement Guidance requires any of these “family-friendly” policies, the EEOC’s process has been designed to showcase the benefits of the policies of increased morale and reduced turnover. By and large, these policies fall into two categories. 1) increased flexibility regarding hours of work, and 2) increased leave options.

The touchstone of addressing care giver needs regarding hours of work is flexibility. Many of these policies are not new; in fact, surveys have show that a majority of employers have implemented some of these policies. See SHRM Research 2006 Benefits Survey Report, p. 2, (1996). According to this survey, the majority of HR professionals said their companies offered flex time – which allows employees to choose their own work hours within certain limits established by the employer – and almost half permitted some form of telecommuting. But these are not the only creative ways to increase work time flexibility. For instance, some employers offer compressed work weeks in which full-time employees work longer days for part of the pay period in exchange for shorter days or a day off during that same pay period (for example allowing an employee to work four ten-hour days). Job sharing is also an option for individuals who only want to work part-time; a shared job allows two employees to share the responsibilities and compensation of one full-time job. One commentator to the EEOC’s discussion offered the example of an employer that had begun “ground up” scheduling. Under this system, the employees themselves would meet monthly to design their schedules based on two imperatives: quality care of patients and meeting the family care needs of all the employees. The removal of top down scheduling has resulted, according to the Commentator, in a substantial decrease in absenteeism. May 23, 2007, Statement of Lisa Dodson to U. S. Equal Employment Opportunity Commission meeting on Achieving Work/Family Balance: Employer Best Practices for Workers With Care Giving Responsibilities.

The second group of policies geared toward caregivers in the workplace is improved leave options. These options include paid time off (“PTO”) policies that eliminate the distinction between vacation time and sick leave so that employees may use PTO for any reason without having to match the need for leave with what is permitted under the employer’s policies. Other suggestions are increased availability of unpaid emergency or short term leave, and allowing employees to use sick leave to care for a family member and not just the employee him or herself. More creative (or unusual) solutions include allowing employees to donate leave to other employees, granting leave for school related issues or for domestic violence and allowing employees to structure their work year (including an appropriate reduction in pay that can be spread over the entire year for salaried employees) to allow for more time off while school is in session.

Finally, employers may consider other work/life balance benefits that would ease some of the burdens of handling everyday tasks. These tasks include going to the Post Office (adding a mail service), dry cleaners (offering dry cleaning pick-up and drop-off at the employer’s facility) or cooking (cafeterias or prepared take-home meals). These programs offer the additional advantage that they benefit all employees and not just caregivers.

Again, none of these policies are required under any reading of the Enforcement Guidance. The Enforcement Guidance does not create any new rights based purely on parental or caregiver status that is not already protected under the law. Nonetheless, the potential reduction in turnover and increased employee morale may justify their consideration.

Conclusion

While not creating any new protected classes, the EEOC’s Enforcement Guidance highlights an area of particular concern to the EEOC. The Enforcement Guidance provides insight into what EEOC investigators will be looking for and therefore what employers would be wise to avoid in making decisions. The issuance of the guidance provides a prime opportunity to review long-forgotten policies for examples of unintended bias (such as child care leave policies that only apply to women) and to train decision-makers to avoid any such stereotypes. Even actions that the employer may think it is taking in an employee’s best interest can violate federal EEO laws if not made with the employee’s actual input.