Extra understanding

In May of this year, the U.S. Equal
Employment Opportunity Commission
(EEOC) issued new guidance titled “Unlawful Disparate Treatment of Workers
with Caregiving Responsibilities.”

According to the EEOC, the potential for
greater discrimination against working
parents and others with caregiving responsibilities has increased. Its new document
helps both employers and employees
determine whether certain conduct constitutes unlawful disparate treatment under
federal law.

“CEOs and business owners must be
aware of the fact this new guidance from
the federal government probably will
increase employment litigation if they are
not informed about what to do and what
not to do,” says Lynn Outwater, managing
partner of the Pittsburgh office of Jackson
Lewis.

Smart Business spoke to Outwater
about how the EEOC plans to enforce the
guidance and how employers should comply.

How is ‘caregiver’ defined?

The definition of ‘caregiver’ is discussed
at great length in the guidance, and it’s not
limited to a particular sex and it’s not limited to parents. The guidance recognizes
that the employee might be taking care of
an elder parent or a ‘significant other’ with
a disability, for example. So caregiving is
broadly defined.

What are some common mistakes that an
employer might make?

The most common is what the guidance
terms a ‘sex-based disparate treatment.’

For instance, an employer might ask a
female applicant — but not a male applicant — ‘Are you married?’ or, ‘Do you have
young children?’ or, ‘Tell me about your
child care or your caregiving responsibilities.’ When interviewing for a job opening,
certain questions are evidence of sex discrimination. Naturally, the employer is trying to find out everything possible about
applicants to make sure there aren’t any
issues or problems. But some questions are
legally taboo.

Here are two other examples:

  1. An executive doesn’t realize an
    employee is pregnant. He tells her that he’s
    concerned about employing pregnant
    women. Later on, she may successfully sue
    for damages, partly because of his statements, which never should have been
    made in the first place.

  2. After giving birth and returning to
    work, an able employee is perceived as
    less capable or less skilled, and such is
    reflected in subsequent performance
    assessments.

The guidance also addresses executives
who stereotypically assume that a male
caregiver will somehow be inadequate or
unable to do his job because they don’t
believe that a male should be a caregiver in
the first place.

What about well-intentioned discrimination?

Sometimes supervisors and other decision-makers are benevolent and are thinking of the employees’ best interests. But
that can be trouble, too.

For instance, you assume that someone
with caregiving responsibilities is not going
to want to relocate to another city, even for
a promotion, so you never even discuss the
promotion. An assumption like that, even
though well-intentioned, can violate federal law.

How can employers avoid these situations?

Given the EEOC’s new focus, I would recommend that you re-examine your policies
and practices and be certain to use nondiscriminatory criteria when hiring, promoting or terminating.

Avoid stereotypical thinking to be certain
that reasons for management decisions are
not the reasons prohibited by federal guidance. Base performance evaluations on
documented, objective criteria and observations. Train executives and supervisors
regarding lawful and unlawful questions
about employees’ family and child care.

If you have an employee who is missing
work because of caregiver responsibilities,
you do not have to ignore the absence, as
long as you treat anyone who’s absent the
same. You can get into legal difficulties by
assuming that an employee will not be as
present, focused or work-oriented because
he or she has caregiving responsibilities.

What kind of training should be done?

Employers should train their supervisors
regarding gender discrimination with a particular emphasis on stereotyping and
harassment, so that supervisors understand that they should not consider child
care or other family care responsibilities in
employment decisions. Employers also
should train their supervisors regarding
retaliation and how, for example, unfavorable scheduling changes affecting care-givers could give rise to retaliation claims.

Employment handbooks, harassment
policies and anti-retaliation policies should
be updated. The whole gamut — anything
that’s published to employees — should be
examined to make sure these federal
guidelines are addressed.

You should make sure that policies and
practices are in conformity with how the
EEOC views treatment of workers’ care-giving responsibilities. That would include
not only reviewing handbooks but training
executives and supervisors regarding
appropriate and inappropriate behavior.

LYNN OUTWATER is managing partner of the Pittsburgh
Regional office of Jackson Lewis, which includes Pittsburgh and
Cleveland. Reach her at [email protected] or (412)
232-0232.