Advisories & Insights

New EEOC guidelines on family responsibility discrimination

August, 2007

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued new guidelines on "Unlawful Disparate Treatment of Workers with Caregiving Responsibilities." While caregivers are not a protected class under federal law,[1] the new guidelines illustrate certain situations in which discrimination against caregivers might be considered unlawful.

Unlawful Disparate Treatment Generally

Under federal law, an employer may not discriminate against an employee on the basis of the employee's "protected class" (sex, race, or disability, among other things). Discrimination exists if an employee is performing his or her job satisfactorily but is subjected to "adverse employment action" (i.e. termination, demotion, etc.) because of his membership in the protected class, while employees who are not in the protected class are treated more favorably.

Family Responsibility Discrimination

Under the new EEOC guidelines, family responsibility discrimination arises when an employee with caregiving responsibilities is discriminated against based on a protected characteristic under federal law (i.e. sex, race, disability).

The guidelines provide the following examples of family responsibility discrimination:

• Treating male caregivers differently than female caregivers;
• Unlawful gender role stereotyping of working women (i.e. discrimination based on the stereotype that female caregivers will be less committed to their jobs);
• Limiting a pregnant employee's job duties based on pregnancy-related stereotypes;
• Denying a male caregiver leave to care for his child when a female caregiver would be granted such leave;
• Re-assigning a minority employee to a lower-paying position after becoming pregnant;
• Refusing to hire a person who has a disabled child based on the assumption the person would be an unreliable employee; or
• Harassing an employee because she is a mother with young children, because she is pregnant, or because the employee's spouse or child has a disability.

How can employers help protect themselves from this newest trend in discrimination lawsuits? Amend your policies to prohibit family responsibility discrimination. Consider implementing a training program that addresses common stereotypes and biases. Finally, it is important to have all of your policies and procedures regularly reviewed by employment counsel for compliance with this rapidly changing area of the law.

Conclusion

Bullivant's experienced employment law attorneys can work with employers and HR professionals to provide training on the new federal guidelines and revise handbooks, policies and procedures accordingly. Please contact Bullivant Houser Bailey's employment team if you need additional details or have any questions.