Extra understanding Featured

8:00pm EDT September 25, 2007

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 outwatel@jacksonlewis.com or (412) 232-0232.