EEOC Issues: New Enforcement Guidelines

The EEOC issued a new guidance on May 23, 2007 , intended to assist investigators, employees, and employers in assessing whether a particular employment decision affecting a caregiver might unlawfully discriminate on the basis of prohibited characteristics under Title VII of the Civil Rights Act of 1964 or the Americans With Disabilities Act of 1990.  Although the federal EEO laws do not prohibit discrimination against caregivers per se, there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment.   The document was created to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate federal law.  An employer may also have specific obligations towards caregivers under other federal statutes, such as Family and Medical Leave Act, or under state or local laws.

Caregiving Responsibility of Workers

1. Women continue to be most families’ primary caregivers.
   
   
2. An increasing proportion of caregiving goes to the elderly.
   
   a. This trend will continue as the Baby Boomer population ages.
   b.  As with childcare, women are primarily responsible for caring for society’s elderly including care of parents, in-laws, and spouses.
   
   
3. Caregiving for individuals with disabilities is a common responsibility of workers.
   
   a.  Nearly a third of families have at least one family member with a disability, including adult children, spouses, or parents
   b.  About one in ten families have a child with a disability under 18 years of age.
   
   
4. Caregiving responsibilities disproportionately affect working women.
   
   a.  Effects are even greater among some women of color, particularly African American women

Work Family Conflicts:

As more mothers have entered the labor force, families have increasingly faced conflicts between work and family responsibility, sometimes resulting in a “maternal wall” that limits the employment opportunities of workers with caregiving responsibilities.

• The impact of work-family conflicts also extends to professional workers, contributing to the maternal wall or “glass ceiling” that prevents many women from advancing in their careers.

Individuals with caregiving responsibilities also may encounter the maternal wall through employer stereotyping.  According to Justice Rehnquist “the faultiness between work and family is precisely where sex-based overgeneralization has remained its strongest.”

• Women with caregiving responsibilities may be perceived as more committed to caregving that to their jobs and as less competent that other workers.

Male caregivers may face the mirror image stereotype: that men are poorly suited to caregiving. 

• As a result, men may be denied parental leave or other benefits routinely afforded their female counterparts.

Illegal Employment Decisions Based on Stereotypes

Employment decisions based on such stereotypes violate the federal antidiscrimination statutes, even when an employer acts upon such stereotypes unconsciously or reflexively. 

• The Supreme Court has explained “We are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group.”

Employment decisions based on stereotypes about working mothers are unlawful because the “antidiscrimination laws entitle individuals to be evaluated as individuals rather than as members of groups having certain average characteristics.”

Although some employment decisions that adversely affect caregivers may not constitute unlawful discrimination based on sex or another protected characteristic, the EEOC strongly encourages employers to adopt the best practices to make it easier for all workers, whether male or female, to balance work and personal responsibilities . 

• There is substantial evidence that workplace flexibility enhances employee satisfactions and job performance.
• Thus employers can benefit by adopting such flexible workplace policies.