By Lauri F. Rasnick and Margaret C. Thering
The Equal Employment Opportunity Commission (“EEOC”) has once again turned its focus to caregiver discrimination. On February 15, 2012, for the first time in nearly 30 years, the EEOC held a meeting about caregiver and pregnancy discrimination. As “caregivers” are not specifically included as a “protected category” under any federal law, the EEOC discussed the various laws which would possibly prohibit certain caregiver discrimination, such as the Pregnancy Discrimination Act, the Americans with Disabilities Act and Amendments Act, and the Family Medical Leave Act. The EEOC specifically discussed accommodating pregnant women under these laws (including light duty and modified work), lactation accommodation, EEOC enforcement of these laws, flexible schedules, paid time off, pay issues, eldercare, and the role of unions in the context of the Pregnancy Discrimination Act.
While the EEOC’s historic meeting was the first of its kind, the topic is not new to the EEOC. In 2007, the EEOC issued enforcement guidance pertaining to caregiver discrimination. In 2009, it released a best practices guide which it revised and updated 2011.
Why all the attention?
Some of the reasons for the increased attention which were provided at the EEOC’s meeting included:
- More women in the workplace: According to the Bureau of Labor Statistics, women currently make up 47% percent of the nation’s workforce.
- Unequal treatment of caregivers: Testimony was presented that there is a measurable “motherhood wage penalty” of as much as 5% per child, even when controlling for education, experience, and other factors known to affect wages.
- More claims: The Center for WorkLife Law documented an approximate 400% increase in caregiver discrimination lawsuits between 1999 and 2008.
- Men speaking out: Males who believe they have been treated unfairly because of caregiver responsibilities are becoming more vocal in asserting claims
What to do?
The recent attention to caregiver discrimination sends a message to employers that this is an issue that needs to be on their radar. In light of the recent focus on caregiver discrimination and the EEOC’s published “best practices”, employers should:
- Re-evaluate procedures and policies regarding promotion, hiring, pay, attendance, pregnancy and other family related leave to determine whether such policies and procedures could have an adverse impact on caregivers.
- Consider including provisions in EEO policies regarding “caregiver” discrimination, including definitions of “caregivers,” possible examples of caregiver discrimination, and a prohibition on retaliation for employees making caregiver discrimination complaints.
- Ensure that any discrimination complaint procedure applies to complaints of caregiver discrimination.
- Thoughtfully consider flexible work arrangements and whether there are flex-time options that can be offered to employees.
- Engage in and document an interactive process when evaluating possible accommodations for individuals seeking accommodations for pregnancy or caregiver responsibilities.
- Regularly train managers and employees to make sure that they understand their obligations as it relates to caregiver discrimination.
- Document legitimate business reasons when denying certain accommodations or taking employment actions.
- Ensure that policies prohibiting discrimination against caregivers and providing for accommodations for caregivers apply equally to both sexes.
Undertaking the above steps will help employers prepare for the EEOC’s continued focus on these issues. For more information please see our earlier client alert on how to prevent discrimination against caregivers.