The EEOC Targets Family Responsibility Discrimination
January 20, 2009
The Equal Employment Opportunity Commission (EEOC) issued a new Enforcement Guidance on May 23, 2007 entitled “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.”
In response to a record number of pregnancy discrimination charges and an increased focus on striking the balance between job responsibilities and family obligations, the Equal Employment Opportunity Commission (EEOC) issued a new Enforcement Guidance on May 23, 2007 entitled “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.”
What is family responsibility discrimination?
Family responsibility discrimination or “FRD” is discrimination against employees based on their responsibilities to care for family members such as children or aging parents.
Although federal law does not expressly prohibit discrimination against caregivers, making employment decisions based on bias towards employees with family responsibilities can violate existing laws such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Family and Medical Leave Act.
Why should I be concerned about FRD?
FRD is quickly becoming one of the biggest battlegrounds for employers and employees. Although employment discrimination lawsuits generally decreased 23% over the past decade, FRD claims increased by nearly 400%. In 2000-2005 alone, over 350 FRD cases were filed against employers. This rise is fueled by the fact that mothers are entering (and staying in) the workforce in record numbers and eldercare is increasingly more common, particularly as the Baby Boomer population ages.
Even more striking is the overwhelming success of employees who assert FRD claims. The average success rate in typical employment discrimination cases is less than 20%. Employees asserting FRD claims, however, have won over 50% of these cases, and the majority of wins resulted in damages exceeding $100,000.
How does the EEOC’s new guidance impact FRD?
While the new guidance does not create a new category of “protected employees,” its impact is significant because it unequivocally:
Signals the EEOC’s plan to aggressively investigate claims of bias against pregnant employees, working mothers and fathers, and employees who care for children or parents with disabilities;
Admonishes employers that even unintentional discrimination against caregivers, resulting from unconscious stereotyping, may be unlawful; and
Advises that biased statements or behavior by supervisors may be sufficient to pursue a charge of discrimination, even in the absence of evidence that non-caregivers were treated more favorably.
To assist EEOC investigators in prosecuting claims, and employers in avoiding them, the 33-page Enforcement Guidance offers numerous examples of unlawful family responsibility discrimination. For example:
To avoid creating a “maternal wall,” employers may not treat working mothers differently from working fathers or women without children.
Employers should not ask applicants (or employees) pregnancy-related questions or questions about their childcare or other caregiving responsibilities.
Male employees must be treated the same as their female counterparts with respect to parenting and leaves of absence related to their caregiving responsibilities (except for pregnancy-related matters).
Because the ADA prohibits discrimination against employees who have a relationship with a disabled child, spouse or parent, employers should avoid making adverse employment decisions based on stereotypical assumptions about the reliability of an employee who is a caregiver.
Employers may be liable for harassment when offensive comments toward pregnant workers, or employees associated with a disabled person, are so severe or pervasive that they create a hostile work environment.
Employers may not retaliate against a caregiver or pregnant employees for opposing unlawful discrimination, such as complaining to their employers about gender stereotyping in the workplace or participating in the EEOC process by filing a charge or testifying on behalf of another employee who files a charge.