EEOC Issues Employer Best Practices for Workers with Caregiving Responsibilities
April, 2009
On April 22, 2009, the EEOC issued a set of best practices or guidelines for employers that address employees with caregiving responsibilities. These supplement previous EEOC documents regarding discrimination based on an employee's responsibilities to provide care to children, disabled persons, or elderly family members who require some level of care from family members.
The EEOC has long considered discrimination against caregivers to violate various federal employment laws. In 2007, the EEOC issued an enforcement guidance statement on the subject, explaining that because caregiving responsibilities predominantly fell on women, discriminating based on caregiving responsibilities may violate Title VII, which prohibits discrimination based on, among other things, sex. The ADA Amendments Act (ADAAA), which became effective January 1, 2009, now explicitly prohibits discrimination based on an employee's association with an individual with a disability. Again, because women are more likely than men to take on caregiving roles (which including caring for someone who may have a condition that qualifies as a disability under the ADAAA), discriminating based on caregiving responsibilities may violate the ADAAA.
The EEOC's recent technical assistance document sets out a set of best practices for employers to follow when dealing with employees with caregiving duties. These best practices are not mandatory, and the EEOC even describes them as going beyond federal nondiscrimination requirements. However, the EEOC explains by following some or all of these best practices, employers remove barriers to equal employment opportunities for workers with caregiving responsibilities. Among the best practices that the EEOC recommends:
- Maintain and enforce employment policies and handbook provisions that expressly prohibit discrimination and retaliation against caregivers.
- Ensure that hiring practices do not explicitly exclude applicants with caregiving duties or have the effect of excluding applicants with caregiving responsibilities.
- Adopt flexible working schedules, telecommuting, and part-time work opportunities to allow workers with caregiving responsibilities the flexibility to perform them.
- Reassign job duties that employees are unable to perform because of pregnancy or other caregiving responsibilities.
- Provide personal or sick leave above that required by the Family and Medical Leave Act (FMLA) to allow flexibility for workers with caregiving responsibilities.
- In general, foster an employment atmosphere that respects and honors those with caregiving responsibilities.
Because employers are not required to follow these best practices in order to comply with federal discrimination laws, not all employers are required to implement them. Implementing some or all of them, however, will help prevent claims that an employer discriminates against caregivers in a way that violates Title VII, the ADAAA, or other federal employment laws. In addition, many state and local laws prohibit discrimination based on parental or familial status, which also may occur when an employer discriminates against a caregiver. Employers therefore may want to adopt some or all of these best practices. Doing so is a decision to be made by each individual employer, based on where the employer is, what state or local laws apply to it, its current equal-employment-opportunity policies, and the makeup of its workforce. Your Bullivant Houser Bailey employment lawyer can help you decide which of these best practices your company should adopt, and how to do so.