Last week, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance for employers on Unlawful Disparate Treatment of Workers With Caregiving Responsibilities. Some employers and legal observers question whether this represents a step in the direction of increased regulation in the area of family responsibilities discrimination.
EEOC guidance notes that while laws prohibiting discrimination do not specifically extend to caregivers, there may be circumstances in which discrimination against caregivers could be considered unlawful disparate treatment under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, or the Family and Medical Leave Act. There may also be state or local laws that extend protection to caretakers under various provisions.
In issuing the guidance, the EEOC cites the demographic shift in the work force over the last four decades since the Civil Rights law was enacted, most notably the increase in working women who continue to shoulder the bulk of caregiving responsibilities. Caregiving responsibilities are defined as including care for school-age children, care for the disabled, and, increasingly with the aging of the Baby Boomers, care for aging parents and relatives.
EEOC guidance encompasses the following areas:
- Sex-based disparate treatment of female caregivers
- Pregnancy discrimination
- Discrimination against male caregivers
- Discrimination against women of color
- Unlawful caregiver stereotyping under the Americans with Disabilities Act
- Hostile work environments
- Retaliation
Tresa Baldas of Law.com discusses the EEOC guidance and the issue of family responsibility discrimination (FRD), which is “a legal and social science term that experts have coined for the growing phenomenon of employees suing employers for discriminating against them because of their caregiving responsibilities at home.” She notes that because federal laws do not specifically prohibit such discrimination, employees with grievances file suit under a variety of existing federal and state laws:
“During the past decade, the courts have seen a significant increase in FRD claims, from 97 cases in 1996 to 481 in 2005, according to a University of California Hastings College of the Law study. And FRD cases—won by plaintiffs more than 50 percent of the time, according to the study —have yielded several multimillion-dollar verdicts and settlements.”
The article, well worth reading, discusses the growing pressure on employers to accommodate employees with family obligations while balancing the demands of specific jobs. Baldas reports that EEOC officials deny that the guidance is an attempt to establish a new class of discrimination claims or to bolster plaintiffs’ lawsuits: ” ‘We’re not creating any new category under the EEOC laws … . We’re looking to the extent that the existing laws apply to work-life balance issues,’ said EEOC vice chairwoman Leslie Silverman.”
One resource in this area is the The Center for Work Life Law from Hastings College of the Law, University of CA. Their site offers resources for preventing family responsibilities discrimination, including court decisions and a model employer policy for discrimination prevention. The Center also has an affiliated WorkLife law Blog. (We thank Richard Bales of Workplace Prof Blog for the pointer – another site worth visiting for this and a multitude of other employment law-related topics. )