Interesting information for working caregivers
0 views
Skip to first unread message
MI Family Caregivers
Jul 22, 2009, 11:08:41 AM7/22/09
to MIfamilycaregivers
The U.S. Equal Employment Opportunity Commission
--------------------------------------------------------------------------------
Employer Best Practices for Workers with Caregiving Responsibilities
In 2007, EEOC issued guidance explaining the circumstances under which
discrimination against workers with caregiving responsibilities might
constitute discrimination based on sex, disability or other
characteristics protected by federal employment discrimination laws.
[1]
This document supplements the 2007 guidance by providing suggestions
for best practices that employers may adopt to reduce the chance of
EEO violations against caregivers, and to remove barriers to equal
employment opportunity.[2] Best practices are proactive measures that
go beyond federal non-discrimination requirements.
Currently, many workers juggle both work and caregiving
responsibilities. Those responsibilities extend not only to spouses
and children, but also to parents and other older family members, or
relatives with disabilities.[3] While women, particularly women of
color, remain disproportionately likely to exercise primary caregiving
responsibilities, men have increasingly assumed caretaking duties for
children, parents and relatives with disabilities.[4]
Employers adopting flexible workplace policies that help employees
achieve a satisfactory work-life balance may not only experience
decreased complaints of unlawful discrimination, but may also benefit
their workers, their customer base, and their bottom line.[5] Numerous
studies have found that flexible workplace policies enhance employee
productivity, reduce absenteeism, reduce costs,[6] and appear to
positively affect profits.[7] They also aid recruitment and retention
efforts, allowing employers to retain a talented, knowledgeable
workforce and save the money and time that would otherwise have been
spent recruiting, interviewing, selecting and training new employees.
[8] The benefits of these programs remain constant regardless of the
economic climate, and some employers have implemented workplace
flexibility programs as an alternative to workforce reductions.[9]
Such programs not only enable employers to “go lean without being
mean,” but they also can position organizations to rebound quickly as
soon as business improves.[10]
The following are examples of best practices for employers that go
beyond federal nondiscrimination requirements and that are designed to
remove barriers to equal employment opportunity.
General
Be aware of, and train managers about, the legal obligations that may
impact decisions about treatment of workers with caregiving
responsibilities. Those include federal employment statutes and
regulations,[11] includingthe Americans with Disabilities Act of 1990,
as amended;[12] the Equal Pay Act of 1963, as amended;[13] the
Pregnancy Discrimination Act;[14] Title VII of the Civil Rights Act of
1964, as amended;[15] the Family and Medical Leave Act (FMLA);[16] the
Employee Retirement Income Security Act (ERISA),[17] 42 U.S.C.§1983,
[18] and Executive Order 13152.[19]
Develop, disseminate, and enforce a strong EEO policy that clearly
addresses the types of conduct that might constitute unlawful
discrimination against caregivers based on characteristics protected
by federal anti-discrimination laws.[20] An effective policy that
addresses caregiver protections under the law should:
Define relevant terms, including “caregiver” and “caregiving
responsibilities.”[21]
Provide an inclusive definition of “family” that extends beyond
children and spouses and covers any individual for whom the applicant
or employee has primary caretaking responsibilities.[22]
Describe common stereotypes or biases about caregivers that may result
in unlawful conduct, including:
assuming that female workers’ caretaking responsibilities will
interfere with their ability to succeed in a fast-paced environment;
[23]
assuming that female workers who work part-time or take advantage of
flexible work arrangements are less committed to their jobs than full-
time employees;[24]
assuming that male workers do not, or should not, have significant
caregiving responsibilities;[25]
assuming that female workers prefer, or should prefer, to spend time
with their families rather than time at work;[26]
assuming that female workers who are caregivers are less capable than
other workers;[27] and
assuming that pregnant workers are less reliable than other workers.
[28]
Provide examples of prohibited conduct related to workers’ caregiving
responsibilities, such as:
asking female applicants and employees, but not male applicants and
employees, about their child care responsibilities;[29]
making stereotypical comments about pregnant workers or female
caregivers;[30]
treating female workers without caregiving responsibilities more
favorably than female caregivers;[31]
steering women with caregiving responsibilities to less prestigious or
lower-paid positions;[32]
treating women of color who have caregiving responsibilities
differently than other workers with caregiving responsibilities due to
gender, race and/or national origin-based stereotypes;[33]
treating male workers with caregiving responsibilities more, or less,
favorably than female workers with caregiving responsibilities;[34]
denying male workers’, but not female workers’, requests for leave
related to caregiving responsibilities;[35] and
providing reasonable accommodations for temporary medical conditions
but not for pregnancy.[36]
Prohibit retaliation against individuals who report discrimination or
harassment based on caregiving responsibilities or who provide
information related to such complaints.
Identify an office or person that staff may contact if they have
questions or need to file a complaint related to caregiver
discrimination.
Ensure that managers at all levels are aware of, and comply with, the
organization’s work-life policies. In particular, front-line
supervisors, middle management and other managers who regularly
interact with employees or who are responsible for assignments, leave
approval, schedules, promotions and other employment terms, conditions
and benefits should be familiar with the organization’s work-life
policies and supportive of employees who take advantage of available
programs.
Provide incentives for managers to ensure that their employees are
aware of work-life balance programs and to support employees who
choose to take advantage of such opportunities.
Assess supervisors’ willingness to assist employees who have
caregiving responsibilities on supervisors’ performance evaluations.
Respond to complaints of caregiver discrimination efficiently and
effectively. Investigate complaints promptly and thoroughly. Take
corrective action and implement corrective and preventive measures as
necessary to resolve the situation and prevent problems from arising
in the future.
Protect against retaliation. Provide clear and credible assurances
that if employees make complaints or provide information related to
complaints about unfair treatment of caregivers, the employer will
protect them from retaliation. Ensure that these anti-retaliation
measures are enforced.
Recruitment, Hiring, and Promotion
Focus on the applicant’s qualifications for the job in question. Do
not ask questions about the applicant’s or employee’s children, plans
to start a family, pregnancy, or other caregiving-related issues
during interviews or performance reviews.
Review employment policies and practices—particularly those related to
hiring, promotion, pay, benefits, attendance, and leave—to determine
whether they disadvantage workers with caregiving responsibilities.
Develop specific, job-related qualification standards for each
position that reflect the duties, functions, and competencies of the
position and minimize the potential for gender stereotyping and other
unlawful discrimination against caregivers. Make sure these standards
are consistently applied when choosing among candidates.
Example: Employer A posts a job opening for a marketing director. The
position requires frequent interaction with company executives,
marketing staff, and external vendors. Alexis and David apply for the
position. Both have extensive marketing experience; however, Alexis is
the primary caregiver for her elderly father, who has Alzheimer’s
disease, and requests to work from home part-time, while David is
available to work on-site full-time. Employer A selects Alexis for the
position based on her familiarity with many of the top vendors in the
industry, noting that she can communicate with relevant parties via
phone and e-mail on the days that she is not in the office. In this
situation, Employer A evaluated both candidates and made the selection
decision based on specific, job-related criteria.
Example: Same facts as above, except Employer A selects David for the
position, commenting that, while it sympathizes with Alexis’s family
situation, it is concerned that her desire to prioritize family
responsibilities over work responsibilities would have a detrimental
effect on the company’s marketing strategy, potentially discouraging
future clients and decreasing revenue. Employer A should not have
based its selection decision on Alexis’s caregiving responsibilities.
Ensure that job openings, acting positions, and promotions are
communicated to all eligible employees regardless of caregiving
responsibilities.
Do not assume that certain employees (for example, mothers of young
children or single parents) will not be interested in positions that
require significant travel or working long or unusual hours.
Implement recruitment practices that target individuals with
caregiving responsibilities who are looking to enter or return to the
workplace.
Advertise positions in parenting magazines and other publications and
web sites that are directed at caregivers.[37]
Identify and remove barriers to re-entry[38] for individuals who have
taken leaves of absence from the workforce due to caregiving
responsibilities or other personal reasons.
When reviewing and comparing applicants’ or employees’ work histories
for hiring or promotional purposes, focus on work experience and
accomplishments and give the same weight to cumulative relevant
experience that would be given to workers with uninterrupted service.
Example: Employer B posts a Customer Service Manager position. Joanne
and Tim apply. Both have approximately three years of customer service
experience; however, Joanne’s experience is spread over a five year
period due to two maternity leaves, while Tim’s experience is
uninterrupted by medical leave. Employer B selects Tim, reasoning that
his continuous service demonstrates his commitment to his career.
Employer B discriminated against Joanne if it refused to consider her
for the job based on her use of maternity leave.
Example: Same facts as above, except that Tim worked for Employer B in
a customer service capacity, while Joann worked for a company in a
different field. If Employer B selected Tim based on his knowledge of
and demonstrated commitment to the company, Employer B’s decision was
not discriminatory.
Provide the skills and training necessary to enhance the
competitiveness and competency of employees while they are on leaves
of absence.[39]
Example: Employer C invites employees who are on personal leaves of
absence to attend company-sponsored training and networking events to
familiarize themselves with the latest industry developments. Employer
C also recruits these employees, on a voluntary basis, to work on
temporary assignments.
Ensure that employment decisions are well-documented and transparent
(to the extent feasible).
To prevent misunderstandings, clearly explain the reasoning behind
employment decisions to relevant parties.
Retain records relevant to decisions about hiring, promotion,
performance, pay, leave, benefits, awards, and other employment
decisions for at least the length of time required by statute.
Terms, Conditions, and Privileges of Employment
Monitor compensation practices and performance appraisal systems for
patterns of potential discrimination against caregivers. Ensure that
performance appraisals are based on employees’ actual job performance
and not on stereotypes about caregivers.
Review workplace policies that limit employee flexibility, such as
fixed hours of work and mandatory overtime, to ensure that they are
necessary to business operations.
Encourage employees to request flexible work arrangements that allow
them to balance work and personal responsibilities. Work with
employees to create customized flexible work arrangements that meet
the specific needs of the employee and employer. Ensure that managers
do not discourage employees from requesting flexible work arrangements
or penalize employees who make such requests. Flexible work
arrangements may include:
General Flexible Options:
Flextime Programs. Flextime policies generally permit employees to
vary their work day start and stop times within a certain range, such
as allowing an employee to arrive at work at any time between 8:00 and
9:30 a.m. and then work for 8 hours.
Flexible Week Opportunities. Flexible week opportunities may include
compressed work weeks, such as a workweek consisting of four ten-hour
work days.
Telecommuting, Work-at-Home, or Flexplace Programs. These options
enable employees to work from home or alternate office locations.
Reduced-time options – These optionspermit employees to work part-time
while juggling other responsibilities, such as caregiving.Reduced-time
options include:
Part-time work opportunities. Part-time workers should receive
proportionate wages and benefits compared with full-time workers.[40]
Similarly, part-time workers should receive proportionate credit for
relevant experience needed to qualify for promotions, training
programs, or other employment opportunities.
Example: José works 3 days a week and spends the other 2 days caring
for his young children. José should receive 3/5 of the wages and
benefits he would receive if he worked full-time.
Example: Employer D posts a job that requires three years of relevant
work experience. Nadia and Jermaine apply for the job. Both have the
required qualifications and three years of work experience; however,
Nadia has worked full-time for the past three years, while Jermaine
has worked three days a week for the past five years while caring for
his father, who has Parkinson’s disease. Employer D should base its
decision on the applicants’ qualifications and experience, rather than
on their schedules.
Job sharing. Job sharing programs permit two employees to share one
full-time position. In general, employees participating in job sharing
programs receive a proportionate share of the salary and benefits.
If overtime is required, make it as family-friendly as possible.
Determine whether a voluntary, rather than mandatory, overtime system
would meet the needs of the organization. If not, permit employees to
schedule overtime in advance so they can arrange for child care, elder
care, or other caregiving responsibilities.
Example: Employer E requires employees to work overtime during peak
periods to meet customer demand. Employer E first asks for volunteers
and then, if necessary, requires employees to sign up for any
remaining shifts. Employer E circulates the overtime schedule in
advance to enable employees to adjust their personal obligations
accordingly.
Reassign job duties that employees are unable to perform because of
pregnancy or other caregiving responsibilities.
Example: Suriya’s doctor recommends a 15 pound lifting restriction
during her pregnancy. Employer F adjusts Suriya’s workload by
reassigning her heavy lifting duties to one of her co-workers and
assigning Suriya some of the co-worker’s duties.
Example: Jack and Lily work on the same team. Jack requests permission
to readjust his schedule so that he can leave work early to pick up
his daughter from pre-school. Lily requests a delayed start time so
that she can take her mother to her weekly physical therapy sessions.
Amar, their supervisor, grants both requests on the condition that
Jack represent the team at early morning meetings and Lily represent
the team at late afternoon meetings.
Provide reasonable personal or sick leave to allow employees to engage
in caregiving even if not required to do so by the Family and Medical
Leave Act of 1993 (FMLA).[41]
Permit employees to use sick leave to care for family members who are
ill and/or to handle medical emergencies involving family members.
[42]
Engage in dialogue with employees to determine the amount of leave
that is appropriate and acceptable based on their workload, upcoming
deadlines and personal circumstances.
Ensure that leave policies exist and are available to male and female
employees on an equal basis. Train managers to ensure that both male
and female employees are aware of leave policies and are not
implicitly or explicitly discouraged from requesting leave.
Example: Employer F offers maternity and paternity leave to employees
upon the birth or adoption of a child. Sue requests maternity leave to
have a baby. Bob requests paternity leave after he and his wife adopt
a baby. Employer F approves Sue’s request but denies Bob’s request,
commenting that as the “family breadwinner,” Bob had a responsibility
to focus on his career. Employer F acknowledged that the company
policies provided for paternity leave, but noted that the policy was
rarely enforced and implied that men who took time off risked losing
out on high-profile assignments. Employer F should ensure that
managers enforce leave policies consistently and without regard to the
gender of the requesting employee. Employer F should not discourage or
punish male employees from requesting leave related to caregiving
responsibilities.
To the extent feasible, permit employees to take leave with little
notice in case of an emergency and to use leave in short increments,
rather than full days or weeks. Caregiving issues may arise suddenly
and unexpectedly, and may be resolved in a relatively short amount of
time.
For example, a child or elderly parent may get sick during the day and
need to see a doctor. Or, a parent may need to make a quick phone call
to ensure that his or her child got home from school safely.
With appropriate communication procedures and leave policies in place,
these situations may be addressed with minimal inconvenience or cost
to the employer.
Establish leave donation banks that enable employees to voluntarily
contribute their leave to co-workers.[43] Some organizations have “use
or lose” leave policies which prohibit employees from accruing and
retaining large amounts of leave. Leave donation banks ensure that
leave does not go to waste and foster an atmosphere of collegiality
and cooperation.
Post employee schedules as early as possible for positions that have
changing work schedules so that employees can arrange in advance for
child care or address other personal responsibilities, thereby
enabling them to more readily fulfill work responsibilities.
Promote an inclusive workplace culture. Cultivate a professional work
environment that recognizes and appreciates the contributions of all
staff members and demonstrates respect for employees’ personal lives
and obligations.
Example: Employer G ensures that all employees, including employees
who work part-time or have flexible work schedules, are eligible to
receive awards and recognition for their achievements.
Example: Employer H schedules all-employee meetings and events on
“core days” when employees who work flexible schedules are in the
office and able to attend.
Develop the potential of employees, supervisors, and executives
without regard to caregiving or other personal responsibilities.
Provide training to all workers, including caregivers, to provide them
with the information necessary to perform their jobs well.
Example: When Nejib has to miss Employer I’s annual training session
to take his wife to the doctor, Nejib’s supervisor e-mails him copies
of the training presentations and handouts and provides him with
contact information for the presenters in the event he has questions
or comments. In this situation, Employer I has ensured that Nejib has
both access to the information presented and the ability to follow up
with the appropriate individuals, as necessary, for additional
information.
Ensure that employees are given equal opportunity to participate on
complex or high-profile work assignments that will enhance their
skills and experience and help them ascend to upper-level positions.
Example: Employer J solicits assistance from employees on a large-
scale project for an important client. Nicole has a flexible work
schedule that enables her to work from home several days a week so she
can care for her young son. Nicole volunteers to assist with the
project and is selected for the team. The majority of work for the
project can be performed off-site and circulated electronically to
team members. Nicole also volunteers to come to the office for
meetings with the client.
Example: Same facts as above, except Nicole is not selected for the
project. Necessary files and equipment are stored on-site and cannot
be removed. Furthermore, impromptu team meetings occur frequently so
project members can discuss new developments and share information. As
a result, it would be very difficult for an employee who works
remotely to participate in this assignment. Employer J is justified in
refusing Nicole’s request to participate on this basis.
Provide employees with equal access to workplace networks to
facilitate the development of professional relationships and the
exchange of ideas and information.
Example: Employer K has a mentor program that matches experienced
employees with more recent hires. All employees, including employees
who work part-time or have a flexible work schedule, are eligible to
participate in the program.
Provide support, resource, and/or referral services that offer
caregiver-related information to employees. Such services may include
referral services for local child care centers or assisted living
facilities, adoption assistance services, parenting education classes,
college financing classes, or a toll-free caregiver hotline that
provides guidance and advice to employees who have work-life balance
questions or concerns.[44]
Studies have demonstrated that flexible work policies have a positive
impact on employee engagement and organizational productivity and
profitability.[45] The practices outlined above have the potential to
benefit all workers, regardless of caregiver-status. Furthermore,
these practices have the potential to benefit employers, enabling them
to recruit and retain talented, productive, committed employees.
Finally, these practices will help ensure that all workers enjoy equal
opportunity to compete, advance, and succeed in the workplace.
--------------------------------------------------------------------------------
ENDNOTES
[1] EEOC, Enforcement Guidance: Unlawful Disparate Treatment of
Workers with Caregiving Responsibilities (2007), available at
http://www.eeoc.gov/policy/docs/caregiving.html [hereinafter Caregiver
Guidance]. Title VII of the Civil Rights Act of 1964 prohibits, inter
alia, discrimination based on sex. 42 U.S.C. § 2000e-2 (2009). The
Americans with Disabilities Act of 1990 prohibits discrimination based
on a worker’s association with an individual with a disability. 42
U.S.C. § 12112(b)(4) (2009). Section 501 of the Rehabilitation Act
provides the same protection to federal workers. 29 U.S.C. § 791(g)
(2009) (incorporating ADA standards). Neither the 2007 Guidance nor
this document create a new prohibited basis for discrimination.
Rather, these documents illustrate circumstances in which stereotyping
or other forms of discrimination may violate Title VII or the
Americans with Disabilities Act.
[2] Additional resources on best practices include: EEOC, “Best” Equal
Employment Opportunity Policies, Programs, and Practices in the
Private Sector (2d ed. 1998), available at
http://www.eeoc.gov/abouteeoc/task_reports/practice.html; Univ. of
California, Hastings Coll. of Law, Center for Work-Life Law,
http://www.worklifelaw.org/;Families & Work Inst., Nat’l Study
ofEmployers2008, available at http://familiesandwork.org/site/research/reports/main.html;
WorkingMother,“100BestCompaniesof2008,”http://www.workingmother.com/?
service=vpage/109. See also infra notes 5 - 9.
[3] See Bureau of Labor Statistics, Dep’t of Labor, Employment
Characteristics of Families, Table 4 (2008), available at
http://www.bls.gov/news.release/famee.t04.htm (reporting that 90.7 %
of families with children under age 18 had at least one employed
parent and 62.2 % of married couple families with children had two
employed parents).
Jodie Levin-Epstein, Ctr. for Law & Soc. Policy, Getting Punched: The
Job and Family Clock 7 (2006), available at http://www.clasp.org/publications/getting
_punched_fullnotes.pdf (acknowledging that approximately one in four
workers cares for an elderly relative, and almost one in ten workers
cares for both children and elderly relatives).
Dep’t of Health & Human Servs., Informal Caregiving: Compassion in
Action 11 (1998), available at http://aspe.hhs.gov/daltcp/reports/carebro2.pdf
(stating that 88 % of individuals with caregiving responsibilities for
ill or disabled relatives or friends worked at least 35 hours per
week); U.S. Census Bureau, Disability and American Families: 2000 3,
16 (2005),available at http://www.census.gov/prod/2005pubs/censr-23.pdf
(finding that approximately two in seven families have at least one
family member with a disability, and approximately one in ten families
with children under 18 years of age includes a child with a
disability).
[4] See, e.g., Laura T. Kessler, The Attachment Gap: Employment
Discrimination Law, Women’s Cultural Caregiving, and the Limits of
Economic and Liberal Legal Theory, 34 U. MICH. J.L. REFORM 371, 378-80
(2001) (noting that women continue to serve as the primary caregivers
for children and sick or disabled relatives); Caregiver Guidance,
supra note 1, at nn.15-20 (describing the disproportionate caretaking
duties exercised by employed women of color); Nat’l Alliance for
Caregiving and AARP, Caregiving in the U.S. vi (2004), available at
http://www.caregiving.org/pubs/data.htm (reporting that 39 % of
caregivers are men).
[5] See, e.g., Boston Coll. Ctr. for Work & Family, Overcoming the
Implementation Gap: How 20 Leading Companies are Making Flexibility
Work, Exec. Summary 8-13 (2008) (listing the benefits of workplace
flexibility programs, including employee commitment; talent
recruitment and retention; enhanced customer service; increased
productivity; reduced absenteeism; and coverage across multiple time
zones); Inst. for a Competitive Workforce, Workplace Flexibility:
Employers Respond to the Changing Workforce 2 (2008) [hereinafter
Workplace Flexibility: Employers Respond] (describing workplace
flexibility practices that reinforce the economic competitiveness of
particular geographic regions); Ellen T. Galinsky, James T. Bond and
E. Jeffrey Hill, When Work Works: A Status Report on Workplace
Flexibility 22-24 (2004), available at http://familiesandwork.org/3w/research/downloads/status.pdf
(reporting the correlation between access to flexible work
arrangements and enhanced employee engagement, loyalty, job
satisfaction and mental health).
[6] See generally Corporate Voices for Working Families, Business
Impacts of Flexibility: An Imperative for Expansion 4(2005), available
at http://www.cvworkingfamilies.org/publications/2/9 [hereinafter
Business Impacts] (reviewing the positive impacts of workplace
flexibility policies on talent management; employee satisfaction,
commitment and engagement; customer retention; and financial
performance and productivity); Families & Work Inst., When Work Works:
2008 Guide to Bold New Ideas for Making Work Work 83-84, available at
http://familiesandwork.org/site/research/reports/main.html
[hereinafter Bold New Ideas] (outlining the business results of
flexibility, including increased employee engagement and retention,
decreased turnover, decreased absenteeism and sick days, increased
customer satisfaction, reduced business costs, increased productivity
and profitability, improved staffing coverage, and enhanced innovation
and creativity).
[7] See, e.g., Workplace Flexibility: Employers Respond, supra note 5,
at 9 (quoting Kaye/Bassman CEO Jeff Kaye, who permits employees to
shift from part-time to full-time and back and offers reduced hours
and job-sharing: “Flexibility makes us money”); Business Impacts,
supra note 6, at 20 (describing First Tennessee Bank’s implementation
of work-life balance policies which resulted in $106 million in
profits based on a 50 % increase in employee retention and
satisfaction and a 7 % increase in customer retention). “[F]lexibility
is a driver of financial performance and productivity and is
correlated to increased revenue generation.” Id. at 4.See also Bold
New Ideas, supra note6, at 16 (noting the rapid expansion of retail
contact lens business 1-800-CONTACTS from $3 million to $250 million
in sales in 11 years, an achievement due in large part, according to
the company, to its flexible workplace policies).
[8] See, e.g., Business Impacts, supra note 6, at 4 (“flexibility has
saved individual companies millions of dollars in prevented
turnover”). For example, Deloitte & Touche saved $41.5 million in
turnover-related costs in 2003. Id. at 10. See generally Bold New
Ideas, supra note 6 (summarizing successful work-balance policies that
strengthened retention rates and decreased turnover rates to well
below industry averages for a wide range of organizations).
[9] See Sue Shellenbarger, Perking Up: Some Companies Offer Surprising
New Benefits, Wall St. J., March 18, 2009, at D1 (describing a variety
of programs employers have adopted to enhance employee morale and
retention, including child-care centers, backup child care, academic
scholarships, concierge services, adoption benefits and expanded
health care); Dep’t of Labor, Women’s Bureau, Flex Options
Teleconference: Using Workplace Flexibility as Part of a Downsizing
Strategy 5-7, 10-11 (Feb. 12, 2009), available at http://we-inc.org/20090212transcript.pdf
[hereinafter Flex Options Teleconference] (reviewing workplace
flexibility programs such as contract work, reduced hours and unpaid
vacations with full benefits, which enable businesses to cut costs,
retain employees, and increase productivity);Matt Richtel, More
Companies Are Cutting Labor Costs Without Layoffs, N.Y. Times, Dec.
22, 2008, available at http://www.nytimes.com/2008/12/22/business/22layoffs.html
(reporting an increasing trend of employers imposing four-day
workweeks, unpaid vacations and flexible schedules in an effort to
prevent layoffs). But see Annys Shin, As Cuts Loom, Will Working From
Home Lead to a Layoff?, Wash. Post, March 23, 2009, at A1 (referring
to companies that use flexible work arrangements to cut costs as “the
exception” and noting the reluctance of middle management to embrace
such policies).
[10] See Flex Options Teleconference, supra note 9, at 20 (recalling
the speaker’s recommendation in 1990 that law firms use flexible work
arrangements rather than layoffs “as a way of going lean without being
mean.”). Flexible work arrangements are “a broad cost cutting and
business growth strategy not only to retain valued employees in a
difficult economy but also to meet customer demands, improve
productivity, manage workloads—both up and down cycles—and work
smarter.” Id. at 10.
[11] State and local laws also may prohibit discrimination based on
parental status or caregiving responsibilities. See generally Ctr. for
WorkLife Law, Preventing Discrimination Against Employees with Family
Responsibilities: A Model Policy for Employers 7-8, available at
http://www.worklifelaw.org/EmployerModelPolicy.html.
[12] 42 U.S.C. § 12101 et seq. (2009).
[13] 29 U.S.C. § 206(d) (2009).
[14] 42 U.S.C. § 2000e(k) (2009).
[15] 42 U.S.C. § 2000e et seq. (2009).
[16] 29 U.S.C. § 2601 et seq. (2009). The FMLA is enforced by the U.S.
Department of Labor.
[17] 29 U.S.C. § 1001 et seq (2009). ERISA is enforced by the U.S.
Department of Labor.
[18] See, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365
F.3d 107 (2d Cir. 2004) (gender stereotyping claims based on an
employee’s status as a working mother are legitimate claims under
section 1983).
[19] 65 Fed. Reg. 26,115 (May 2, 2000) (prohibiting discrimination
based on parental status in federal employment practices).
[20] In addition to the federal statutes and regulations that may
impact workers with caregiving responsibilities, several states and
localities have enacted legislation that prohibits employment
discrimination based on parental status or caregiving
responsibilities. See, e.g., Alaska Stat. § 18.80.220 (West 2008)
(prohibiting discrimination based on “parenthood”); D.C. Code Ann. §
2-1402.11 (2009) (prohibiting discrimination based on “family
responsibilities”); Atlanta, Ga., Ordinances ch. 94, art. V, § 112
(2009) (prohibiting discrimination based on “parental status” and
“familial status”); Milwaukee, Wis., Ordinances ch. 109, subch. 3, §
45 (2008) (prohibiting discrimination based on “familial status”);
Tampa, Fla. Ordinances ch. 12, art. II, § 26 (2009) (prohibiting
discrimination based on “familial status”); Cook County, Ill.,
Ordinances ch. 42, art. II, § 35 (prohibiting discrimination based on
“parental status”); Howard County, Md., Ordinances tit. 12, subtit. 2,
§ 208 (2008) (prohibiting discrimination based on “familial status”).
See also Stephanie Bornstein and Julie Weber, Policy Brief: Addressing
Family Responsibilities Discrimination (Sloan Work and Family Research
Network, Boston College and Center for WorkLife Law, UC Hastings
College of Law), Dec. 2008, at 3(asserting that more than 55
localities prohibit employment discrimination based on “familial
status,” “family responsibilities,” “parenthood” or “parental
status”).
[21] See., e.g., Caregiver Guidance, supra note 1, at I.A., available
at http://www.eeoc.gov/policy/docs/caregiving.html#caregive
(describing the range of caregiving responsibilities performed by
workers, including child care, elder care and care for immediate
family members with disabilities).
[22] See, e.g., Achieving Work/Family Balance: Employer Best Practices
for Workers with Caregiving Responsibilities: Equal Employment
Opportunity Commission Meeting on the Commission’s Enforcement
Guidance on Unlawful Disparate Treatment of Workers with Caregiving
Responsibilities (May 23, 2007) [hereinafter Work/Family Balance
Meeting] (statement ofHoracio D. Rozanski, Vice President and Chief
Personnel Officer of Booz Allen Hamilton; Member of the Hidden Brain
Drain Taskforce), available at http://www.eeoc.gov/abouteeoc/meetings/5-23-07/rozanski.html
[hereinafter Rozanski statement] (noting that many women have “work-
life challenges that go beyond biological children and the nuclear
family,” such as elder-care and extended-family responsibilities);
Work/Family Balance Meeting (statement of Dr. Anika K. Warren,
Research Director, Catalyst, Inc.), available at
http://www.eeoc.gov/abouteeoc/meetings/5-23-07/warren.html
[hereinafter Warren statement] (observing that the definition of
“family” may vary based on cultural norms and traditions, and may
include individuals who are not biologically related to each other).
Sexual orientation and marital status are not protected
characteristics under federal employment law. However, state and local
law, as well as company policies, may prohibit such discrimination.
See, e.g., Human Rights Campaign Foundation, The State of the
Workplace for Lesbian, Gay, Bisexual and Transgender Americans 2007 –
2008 1(reporting that 20 states, the District of Columbia, and more
than 180 cities and counties prohibit employment discrimination based
on sexual orientation). Discrimination against caregivers of unmarried
partners based on their caregiving responsibilities might violate such
state or local prohibitions. In addition, 85 % of Fortune 500
companies and 94 % of Fortune 100 companies protect workers from
discrimination based on sexual orientation. Id. Furthermore, several
states prohibit workplace discrimination based on marital status. See,
e.g., Alaska Stat. § 18.80.220 (West 2008); Cal. Govt. Code § 12940
(West 2009); Colo. Rev. Stat. § 8-17-101 (2008) (public works); Fla.
Stat. Ann. § 760.10 (West 2009); Haw. Rev. Stat. Ann. §378-2 (West
2008); 775 Ill. Comp. Stat. 5/1-102 (2009); Mich. Comp. Laws Ann. §
37.2202 (West 2008); Minn. Stat. § 363A.08 (2009); Neb. rev. Stat. §
48-1104 (2008); N.Y. Hum. Rts. Law § 296 (McKinney 2009); N.D. Cent.
Code § 34-11.1-04.1 (2008) (state employment); Wash. Rev. Code Ann. §
49.60.180 (West 2009); Wis. Stat. Ann. § 111.321 (West 2007). In
jurisdictions which prohibit employment discrimination based on sexual
orientation or marital status, discrimination against caregivers of
unmarried partners based on their caregiving responsibilities may be
held unlawful.
[23] See, e.g., Caregiver Guidance, supra note 1, at Example 2,
available at http://www.eeoc.gov/policy/docs/caregiving.html#gender;
Back, 365 F.3d at 115 (elementary school psychologist denied tenure
after her superiors repeatedly voiced concerns about her ability to
juggle her caregiving and work responsibilities, including comments
that it was “not possible for [plaintiff] to be a good mother and have
this job” and that her job was “not for a mother”); Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000)
(telecommunications company director of finance and administration
terminated after senior executives questioned how she managed to
juggle her work, child care and marital responsibilities; asked how
her husband was doing since she was not home to cook for him; and
inquired whether plaintiff would be able to do her job after having a
second child). Noting that his secretary no longer worked late after
having children, one executive commented “that is what happens when we
hire females in the child-bearing years.” Id. at 51. See also Trezza
v. Hartford, Inc., 1998 WL 912101, at *2 (S.D.N.Y. Dec. 30, 1998)
(defendant commented that working mothers could not effectively juggle
both work and caregiving responsibilities, remarking “I don’t see how
you can do either job well”); Moore v. Alabama State Univ., 980 F.
Supp. 426 (M.D. Ala 1997) (university admissions assistant denied
promotion based on defendant’s belief that the position, which
required travel, would prevent her from caring for her family).
[24] See, e.g., Caregiver Guidance, supra note 1, at Example 5,
available at http://www.eeoc.gov/policy/docs/caregiving.html#assumption.
[25] See, e.g., Caregiver Guidance, supra note 1, at II.C, available
at http://www.eeoc.gov/policy/docs/caregiving.html#discrmale. See also
Knussman v. Maryland, 272 F.3d 625, 630 (4th Cir. 2001) (rejecting
male plaintiff’s request for leave to care for his wife and newborn
baby, defendant declared that plaintiff would qualify as a primary
care giver only if his wife were “in a coma or dead”).
[26] See, e.g., Caregiver Guidance, supra note 1, at Examples 7 and 8,
available at http://www.eeoc.gov/policy/docs/caregiving.html#benevolent;
Sheehan v. Donlen Corp., 173 F.3d 1039, 1043 (7th Cir. 1999) (accounts
manager, a mother of three, terminated and told “[h]opefully this will
give you some time to spend at home with your children”); Plaetzer v.
Borton Automotive, Inc., 2004 WL 2066770, at *1 (D. Minn. 2004) (sales
manager told plaintiff, a mother of four, that she should “do the
right thing” and stay home with her children); Trezza, 1998 WL 912101
at *1 (defendant assumed that plaintiff, a mother of two, would not be
interested in a promotion to a position that required frequent travel
because of her family responsibilities); Bailey v. Scott-Gallaher,
Inc., 480 S.E.2d 502, 503(Va. 1997) (defendant terminated plaintiff
after she gave birth, contending that “[her] place was at home with
her child”).
[27] See, e.g., Caregiver Guidance, supra note 1, at II.A.4, available
at http://www.eeoc.gov/policy/docs/caregiving.html#effects; Santiago-
Ramos, 217 F.3d at 50-51 (defendant admitted that it preferred to hire
single women without children who would give 150 % to their job and
expressed concern that women with multiple children would not be able
to manage work and family responsibilities); Trezza, 1998 WL 912101,
at *2 (defendant commented that “women are not good planners,
especially women with kids” and stated that working mothers could not
successfully be good mothers and good workers).
[28] See, e.g., Caregiver Guidance, supra note 1, at II.B, available
at http://www.eeoc.gov/policy/docs/caregiving.html#pregnancy; Bailey,
480 S.E.2d at 503 (defendant terminated plaintiff because “she was no
longer dependable since she had delivered a child . . . babies get
sick sometimes and [plaintiff] would have to miss work to care for her
child . . . [Defendant] needed someone more dependable”).
[29] See, e.g., Caregiver Guidance, supra note 1, at II.A.3, available
at http://www.eeoc.gov/policy/docs/caregiving.html#gender; Gallina v.
Mintz, Levin, et. al., 2005 WL 240390 (4th Cir. 2005) (defendant
expressed disapproval that plaintiff had not admitted during her
interview that she had a child); Back, 365 F.3d at 115 (defendant
asked plaintiff how she was “planning on spacing [her] offspring,”
requested that she “wait until [her son] was in kindergarten to have
another child,” and informed plaintiff that she was being denied
tenure so defendant could have another year to “assess [her] child
care situation”); Santiago-Ramos, 217 F.3d at 50 (defendant asked
plaintiff several times about her ability to juggle work and family
responsibilities); Barbano v. Madison County, 922 F.2d 139 (2d Cir.
1990) (female applicant was asked about her plans to start a family
and was informed that the hiring official did not want to hire a woman
who would get pregnant and quit).
[30] See, e.g., Caregiver Guidance, supra note 1, at II.A.3-4, II.B,
available at http://www.eeoc.gov/policy/docs/caregiving.html#gender;
Gallina, 2005 WL 240390, at *1-2 (defendant ordered plaintiff to
decide whether she wanted to be “a successful mommy or a successful
lawyer” and described a “commitment differential” between male and
female attorneys, noting that “women lawyers have more demands place
[d] on them, and it’s very hard for them to balance when they have a
family”); Back, 365 F.3d at 115 (plaintiff’s supervisor requested that
plaintiff wait until the supervisor retired before getting pregnant,
repeatedly told plaintiff that it was “not possible for [her] to be a
good mother and have this job,” and questioned her commitment to her
job based on her family responsibilities); Plaetzer, 2004 WL 2066770,
at *1 (refusing plaintiff’s request for a fixed schedule during the
summer to enable her to make child care arrangements, defendant stated
that his wife did not have child care issues, that he did not have to
be family friendly and that he did not care about plaintiff’s
problems). Defendant also told plaintiff that, as a woman with a
family, she would always be at a disadvantage at work. Id. See also
Trezza, 1998 WL 912101, at *2 (defendant asserted that “women are not
good planners, especially women with kids” and commented that working
mothers could not be both good mothers and good workers); Sigmon v.
Parker, Chapin, Flattau & Kimpl, 901 F. Supp. 667, 672 (S.D.N.Y. 1995)
(defendant commented, in the presence of two pregnant employees, “With
all these pregnant women around, I guess we should stop hiring
women”); Bailey,480 S.E.2d at 503 (defendant terminated plaintiff
based on its belief that she was no longer reliable after having a
baby, that she belonged at home with her baby, and that her baby would
require her to take time off work).
[31] See, e.g., Santiago-Ramos, 217 F.3d at 51 (a senior executive
admitted that he preferred to hire single women without children who
would give 150 % to the job; a fellow executive said he did not like
women with children working for the company); Trezza, 1998 WL 912101,
at *1-2 (defendant passed over plaintiff, a mother of two, to offer
promotions to female colleagues without children, despite plaintiff’s
qualifications and experience).
[32] See, e.g., Caregiver Guidance, supra note 1, at II.A.3-4,
available at http://www.eeoc.gov/policy/docs/caregiving.html#gender.
See also Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004)
(plaintiff’s manager failed to consider her for a promotion because he
assumed, despite plaintiff’s express interest in receiving a
promotion, that she would not want to relocate her family); Trezza,
1998 WL 912101, at *1 (defendant assumed that plaintiff, a mother of
two, would not be interested in a promotion to a position that
required frequent travel because of her family responsibilities).
[33] See, e.g., Caregiver Guidance, supra note 1, at II.D, available
at http://www.eeoc.gov/policy/docs/caregiving.html#discrwomen. See
also Work/Family Balance Meeting, Warren statement, supra note 22
(concluding that women of color confront stereotypes based on gender,
race, ethnicity, and socio-economic status that are “uniquely
different” than stereotypes confronted by other groups).
[34] See, e.g., Caregiver Guidance, supra note 1, at II.A.2, available
at http://www.eeoc.gov/policy/docs/caregiving.html#male; Phillips v.
Martin Marietta Corp., 400 U.S. 542 (1971) (concluding that Title VII
prohibits the implementation of distinct hiring policies for women
with young children and men with young children); Trezza, 1998 WL
912101, at *1-2 (defendant repeatedly passed over plaintiff, a mother
of two, to offer promotions to male colleagues with children, despite
plaintiff’s superior qualifications and seniority). See also infra
note 35.
[35] See, e.g., Caregiver Guidance, supra note 1, at II.C, available
at http://www.eeoc.gov/policy/docs/caregiving.html#discrmale;
Knussman, 272 F.3d at 630 (denying plaintiff’s request for leave to
care for his wife and newborn baby, defendant stated that plaintiff
could qualify as a primary care giver only if his wife were “in a coma
or dead”); Shafer v. Bd. of Pub. Educ., 903 F.2d 243 (3d Cir. 1990)
(male teacher denied unpaid leave of absence to care for his son;
school policy expressly provided such leave to female employees);
Schultz v. Advocate Health & Hosp. Corp., 2002 WL 32154732 (N.D.Ill.
Oct. 30, 2002) (male maintenance worker alleged defendant interfered
with his FMLA rights and terminated him in retaliation for requesting
unpaid leave to care for his parents).
[36] Walker v. Fred Nesbit Distrib. Co., 331 F. Supp. 2d 780 (S.D.
Iowa 2004) (defendant denied female truck driver’s request for
reassignment to light duty work or imposition of lifting restrictions
during her pregnancy but accommodated male employees with temporary
disabilities due to non-work-related activities); Stansfield v.
O’Reilly Auto., Inc., 2006 WL 1030010 (S.D.Tex. 2006) (defendant
refused to permit plaintiff to request assistance lifting objects
during her pregnancy, although female employees were routinely invited
to solicit assistance from male employees when lifting heavy
objects).
[37] A recent Internet search yielded the following organizations.
Please note that these are a few examples of U.S. recruitment and
staffing agencies that target caregivers. EEOC does not endorse these
organizations or vouch for the services they provide by referencing
them herein. See, e.g., Employmoms, available at http://www.employmoms.com;
Ivy Exec, available at http://www.ivyexec.com; Jobs and Moms,
available at http://www.jobsandmoms.com; Mom Corps, available at
http://www.momcorps.com; Momentum Resources, available at http://www.mom-entum.com;
On Ramps, available at http://www.on-ramps.com; Smart-Moms, available
at http://www.smart-moms.net; Women for Hire, available at
http://www.womenforhire.com; Work-Life Initiative, LLC, available at
http://www.worklifeinitiative.com; W2W Ventures, available at
http://www.w2wventures.com; 2Hats Network, LLC, available at
http://www.2hatsnetwork.com.
[38] Women re-entering the workforce after interruptions of service
are often significantly disadvantaged. For example, women lose an
average of 11% of their earning power when they exit the workforce for
less than one year. Sylvia Ann Hewlett & Carolyn Buck Luce, Off-Ramps
and On-Ramps: Keeping Talented Women on the Road to Success, Harv.
Bus. Rev., Mar. 2005, at 43, 46. When women spend three years or more
out of the workforce, they lose an average of 37% of their earning
power. Id.
[39] For example, consulting firm Booz Allen has reported that it has
used a “ramp up, ramp down” flexible work program to contract as
needed with current employees and employees who recently exited the
workforce. This program enables workers to remain connected to the
workplace through small projects and helps them to keep their skills
and competencies sharp and updated. The program also enables Booz
Allen to contract out projects to trusted workers and helps the
company become the “employer of choice” for many former employees,
especially mothers, when they decide to re-enter the workforce. Id. at
52. Similarly, investment company Lehman Brothers developed the Encore
Program to provide female bankers and traders who had been out of the
workforce for several years with opportunities to update their skills
and interview for jobs. Ernst & Young, Deloitte & Touche and
PriceWaterhouseCoopers have developed similar recruitment programs.
See Work/Family Balance Meeting, supra note 22 (testimony of Dr. Anika
Warren, Research Director, Catalyst, Inc., and Horacio D. Rozanski,
Vice President and Chief Personnel Officer of Booz Allen Hamilton;
Member of the Hidden Brain Drain Taskforce), available at
http://www.eeoc.gov/abouteeoc/meetings/5-23-07/transcript.html.
[40] The practice of paying part-time workers at a lower hourly rate
than full-time workers might violate the Equal Pay Act. See Lovell v.
BBNT Solutions, LLC, 295 F. Supp. 2d 611 (E.D. Va. 2003) (part-time
female worker could compare herself with full-time male worker for
purposes of establishing a prima facie case under the EPA); Section
10: Compensation Discrimination, § 10-IV F.2.h, EEOC Compliance
Manual, Volume II (BNA) (2000) (“employer can justify paying part-time
or temporary workers disproportionately less than full-time or
permanent workers only if it can show that this justification is
related to a legitimate business purpose and is used reasonably in
light of that purpose”).
[41] 29 U.S.C. § 2601 et. seq. (2009). The FMLA covers private sector
employers with at least 50 employees within a 75-mile radius.
Employees must have worked for the employer for at least 12 months or
1,250 hours. Covered employers are required to provide up to 12 weeks
of unpaid medical leave during a 12-month period to eligible employees
for child birth and newborn care, adoption or foster care placement,
care for immediate family members with a serious health condition, or
to handle a serious personal health condition. The FMLA was recently
updated to provide up to 26 weeks of leave to immediate family members
of servicemen and women in certain circumstances. Id. § 2612 (a)(1)
(E), (a)(3).See also The 15th Anniversary of the Family Medical Leave
Act: Achievements and Next Steps: Hearing Before the House Subcomm. on
Workforce Prot., Comm. on Educ. & Labor, 110th Cong. 5-6 (2008)
(statement of Debra Ness, President, National Partnership for Women &
Families) (noting that nearly 40 % of workers in the United States
work for employers with less than 50 employees and that approximately
25 % of workers had worked for their current employer for 12 months or
less).
[42] See, e.g., Work/Family Balance Meeting, supra note 22 (statement
of Donna Klein, President and Chief Executive Officer, Corporate
Voices for Working Families), available at
http://www.eeoc.gov/abouteeoc/meetings/5-23-07/klein.html [hereinafter
Klein statement](describing H-E-B Grocery Company’s MedBank sick leave
program, which provides paid leave for eligible employees who miss
work due to personal illness or injury or the illness or injury of
immediate family members, including spouses, children, parents and in-
laws, and siblings).
[43] For example, the federal government has a voluntary leave
transfer program which enables employees to donate annual leave to
other federal employees who have exhausted their available paid leave.
5 U.S.C. § 6331 – 6340 (2009). See also Montgomery County Educ. Ass’n
Sick Leave Bank: Rules of Procedure 3-4, 8, available at
http://mcea.nea.org/members/sick_leave_bank.php (providing up to 360
days of leave to qualifying members for extended personal illness or
disability purposes).
[44] See, e.g., Work/Family Balance Meeting, Klein statement, supra
note 22 (discussing the Marriot, International, Inc. Associate
Resource Line, which provides employees with confidential assistance
in juggling work and family responsibilities).
[45] See supra notes 5 - 8.
--------------------------------------------------------------------------------
This page was last modified on May 22, 2009.
Return to Home Page
--------------------------------------------------------------------------------
Employer Best Practices for Workers with Caregiving Responsibilities
In 2007, EEOC issued guidance explaining the circumstances under which
discrimination against workers with caregiving responsibilities might
constitute discrimination based on sex, disability or other
characteristics protected by federal employment discrimination laws.
[1]
This document supplements the 2007 guidance by providing suggestions
for best practices that employers may adopt to reduce the chance of
EEO violations against caregivers, and to remove barriers to equal
employment opportunity.[2] Best practices are proactive measures that
go beyond federal non-discrimination requirements.
Currently, many workers juggle both work and caregiving
responsibilities. Those responsibilities extend not only to spouses
and children, but also to parents and other older family members, or
relatives with disabilities.[3] While women, particularly women of
color, remain disproportionately likely to exercise primary caregiving
responsibilities, men have increasingly assumed caretaking duties for
children, parents and relatives with disabilities.[4]
Employers adopting flexible workplace policies that help employees
achieve a satisfactory work-life balance may not only experience
decreased complaints of unlawful discrimination, but may also benefit
their workers, their customer base, and their bottom line.[5] Numerous
studies have found that flexible workplace policies enhance employee
productivity, reduce absenteeism, reduce costs,[6] and appear to
positively affect profits.[7] They also aid recruitment and retention
efforts, allowing employers to retain a talented, knowledgeable
workforce and save the money and time that would otherwise have been
spent recruiting, interviewing, selecting and training new employees.
[8] The benefits of these programs remain constant regardless of the
economic climate, and some employers have implemented workplace
flexibility programs as an alternative to workforce reductions.[9]
Such programs not only enable employers to “go lean without being
mean,” but they also can position organizations to rebound quickly as
soon as business improves.[10]
The following are examples of best practices for employers that go
beyond federal nondiscrimination requirements and that are designed to
remove barriers to equal employment opportunity.
General
Be aware of, and train managers about, the legal obligations that may
impact decisions about treatment of workers with caregiving
responsibilities. Those include federal employment statutes and
regulations,[11] includingthe Americans with Disabilities Act of 1990,
as amended;[12] the Equal Pay Act of 1963, as amended;[13] the
Pregnancy Discrimination Act;[14] Title VII of the Civil Rights Act of
1964, as amended;[15] the Family and Medical Leave Act (FMLA);[16] the
Employee Retirement Income Security Act (ERISA),[17] 42 U.S.C.§1983,
[18] and Executive Order 13152.[19]
Develop, disseminate, and enforce a strong EEO policy that clearly
addresses the types of conduct that might constitute unlawful
discrimination against caregivers based on characteristics protected
by federal anti-discrimination laws.[20] An effective policy that
addresses caregiver protections under the law should:
Define relevant terms, including “caregiver” and “caregiving
responsibilities.”[21]
Provide an inclusive definition of “family” that extends beyond
children and spouses and covers any individual for whom the applicant
or employee has primary caretaking responsibilities.[22]
Describe common stereotypes or biases about caregivers that may result
in unlawful conduct, including:
assuming that female workers’ caretaking responsibilities will
interfere with their ability to succeed in a fast-paced environment;
[23]
assuming that female workers who work part-time or take advantage of
flexible work arrangements are less committed to their jobs than full-
time employees;[24]
assuming that male workers do not, or should not, have significant
caregiving responsibilities;[25]
assuming that female workers prefer, or should prefer, to spend time
with their families rather than time at work;[26]
assuming that female workers who are caregivers are less capable than
other workers;[27] and
assuming that pregnant workers are less reliable than other workers.
[28]
Provide examples of prohibited conduct related to workers’ caregiving
responsibilities, such as:
asking female applicants and employees, but not male applicants and
employees, about their child care responsibilities;[29]
making stereotypical comments about pregnant workers or female
caregivers;[30]
treating female workers without caregiving responsibilities more
favorably than female caregivers;[31]
steering women with caregiving responsibilities to less prestigious or
lower-paid positions;[32]
treating women of color who have caregiving responsibilities
differently than other workers with caregiving responsibilities due to
gender, race and/or national origin-based stereotypes;[33]
treating male workers with caregiving responsibilities more, or less,
favorably than female workers with caregiving responsibilities;[34]
denying male workers’, but not female workers’, requests for leave
related to caregiving responsibilities;[35] and
providing reasonable accommodations for temporary medical conditions
but not for pregnancy.[36]
Prohibit retaliation against individuals who report discrimination or
harassment based on caregiving responsibilities or who provide
information related to such complaints.
Identify an office or person that staff may contact if they have
questions or need to file a complaint related to caregiver
discrimination.
Ensure that managers at all levels are aware of, and comply with, the
organization’s work-life policies. In particular, front-line
supervisors, middle management and other managers who regularly
interact with employees or who are responsible for assignments, leave
approval, schedules, promotions and other employment terms, conditions
and benefits should be familiar with the organization’s work-life
policies and supportive of employees who take advantage of available
programs.
Provide incentives for managers to ensure that their employees are
aware of work-life balance programs and to support employees who
choose to take advantage of such opportunities.
Assess supervisors’ willingness to assist employees who have
caregiving responsibilities on supervisors’ performance evaluations.
Respond to complaints of caregiver discrimination efficiently and
effectively. Investigate complaints promptly and thoroughly. Take
corrective action and implement corrective and preventive measures as
necessary to resolve the situation and prevent problems from arising
in the future.
Protect against retaliation. Provide clear and credible assurances
that if employees make complaints or provide information related to
complaints about unfair treatment of caregivers, the employer will
protect them from retaliation. Ensure that these anti-retaliation
measures are enforced.
Recruitment, Hiring, and Promotion
Focus on the applicant’s qualifications for the job in question. Do
not ask questions about the applicant’s or employee’s children, plans
to start a family, pregnancy, or other caregiving-related issues
during interviews or performance reviews.
Review employment policies and practices—particularly those related to
hiring, promotion, pay, benefits, attendance, and leave—to determine
whether they disadvantage workers with caregiving responsibilities.
Develop specific, job-related qualification standards for each
position that reflect the duties, functions, and competencies of the
position and minimize the potential for gender stereotyping and other
unlawful discrimination against caregivers. Make sure these standards
are consistently applied when choosing among candidates.
Example: Employer A posts a job opening for a marketing director. The
position requires frequent interaction with company executives,
marketing staff, and external vendors. Alexis and David apply for the
position. Both have extensive marketing experience; however, Alexis is
the primary caregiver for her elderly father, who has Alzheimer’s
disease, and requests to work from home part-time, while David is
available to work on-site full-time. Employer A selects Alexis for the
position based on her familiarity with many of the top vendors in the
industry, noting that she can communicate with relevant parties via
phone and e-mail on the days that she is not in the office. In this
situation, Employer A evaluated both candidates and made the selection
decision based on specific, job-related criteria.
Example: Same facts as above, except Employer A selects David for the
position, commenting that, while it sympathizes with Alexis’s family
situation, it is concerned that her desire to prioritize family
responsibilities over work responsibilities would have a detrimental
effect on the company’s marketing strategy, potentially discouraging
future clients and decreasing revenue. Employer A should not have
based its selection decision on Alexis’s caregiving responsibilities.
Ensure that job openings, acting positions, and promotions are
communicated to all eligible employees regardless of caregiving
responsibilities.
Do not assume that certain employees (for example, mothers of young
children or single parents) will not be interested in positions that
require significant travel or working long or unusual hours.
Implement recruitment practices that target individuals with
caregiving responsibilities who are looking to enter or return to the
workplace.
Advertise positions in parenting magazines and other publications and
web sites that are directed at caregivers.[37]
Identify and remove barriers to re-entry[38] for individuals who have
taken leaves of absence from the workforce due to caregiving
responsibilities or other personal reasons.
When reviewing and comparing applicants’ or employees’ work histories
for hiring or promotional purposes, focus on work experience and
accomplishments and give the same weight to cumulative relevant
experience that would be given to workers with uninterrupted service.
Example: Employer B posts a Customer Service Manager position. Joanne
and Tim apply. Both have approximately three years of customer service
experience; however, Joanne’s experience is spread over a five year
period due to two maternity leaves, while Tim’s experience is
uninterrupted by medical leave. Employer B selects Tim, reasoning that
his continuous service demonstrates his commitment to his career.
Employer B discriminated against Joanne if it refused to consider her
for the job based on her use of maternity leave.
Example: Same facts as above, except that Tim worked for Employer B in
a customer service capacity, while Joann worked for a company in a
different field. If Employer B selected Tim based on his knowledge of
and demonstrated commitment to the company, Employer B’s decision was
not discriminatory.
Provide the skills and training necessary to enhance the
competitiveness and competency of employees while they are on leaves
of absence.[39]
Example: Employer C invites employees who are on personal leaves of
absence to attend company-sponsored training and networking events to
familiarize themselves with the latest industry developments. Employer
C also recruits these employees, on a voluntary basis, to work on
temporary assignments.
Ensure that employment decisions are well-documented and transparent
(to the extent feasible).
To prevent misunderstandings, clearly explain the reasoning behind
employment decisions to relevant parties.
Retain records relevant to decisions about hiring, promotion,
performance, pay, leave, benefits, awards, and other employment
decisions for at least the length of time required by statute.
Terms, Conditions, and Privileges of Employment
Monitor compensation practices and performance appraisal systems for
patterns of potential discrimination against caregivers. Ensure that
performance appraisals are based on employees’ actual job performance
and not on stereotypes about caregivers.
Review workplace policies that limit employee flexibility, such as
fixed hours of work and mandatory overtime, to ensure that they are
necessary to business operations.
Encourage employees to request flexible work arrangements that allow
them to balance work and personal responsibilities. Work with
employees to create customized flexible work arrangements that meet
the specific needs of the employee and employer. Ensure that managers
do not discourage employees from requesting flexible work arrangements
or penalize employees who make such requests. Flexible work
arrangements may include:
General Flexible Options:
Flextime Programs. Flextime policies generally permit employees to
vary their work day start and stop times within a certain range, such
as allowing an employee to arrive at work at any time between 8:00 and
9:30 a.m. and then work for 8 hours.
Flexible Week Opportunities. Flexible week opportunities may include
compressed work weeks, such as a workweek consisting of four ten-hour
work days.
Telecommuting, Work-at-Home, or Flexplace Programs. These options
enable employees to work from home or alternate office locations.
Reduced-time options – These optionspermit employees to work part-time
while juggling other responsibilities, such as caregiving.Reduced-time
options include:
Part-time work opportunities. Part-time workers should receive
proportionate wages and benefits compared with full-time workers.[40]
Similarly, part-time workers should receive proportionate credit for
relevant experience needed to qualify for promotions, training
programs, or other employment opportunities.
Example: José works 3 days a week and spends the other 2 days caring
for his young children. José should receive 3/5 of the wages and
benefits he would receive if he worked full-time.
Example: Employer D posts a job that requires three years of relevant
work experience. Nadia and Jermaine apply for the job. Both have the
required qualifications and three years of work experience; however,
Nadia has worked full-time for the past three years, while Jermaine
has worked three days a week for the past five years while caring for
his father, who has Parkinson’s disease. Employer D should base its
decision on the applicants’ qualifications and experience, rather than
on their schedules.
Job sharing. Job sharing programs permit two employees to share one
full-time position. In general, employees participating in job sharing
programs receive a proportionate share of the salary and benefits.
If overtime is required, make it as family-friendly as possible.
Determine whether a voluntary, rather than mandatory, overtime system
would meet the needs of the organization. If not, permit employees to
schedule overtime in advance so they can arrange for child care, elder
care, or other caregiving responsibilities.
Example: Employer E requires employees to work overtime during peak
periods to meet customer demand. Employer E first asks for volunteers
and then, if necessary, requires employees to sign up for any
remaining shifts. Employer E circulates the overtime schedule in
advance to enable employees to adjust their personal obligations
accordingly.
Reassign job duties that employees are unable to perform because of
pregnancy or other caregiving responsibilities.
Example: Suriya’s doctor recommends a 15 pound lifting restriction
during her pregnancy. Employer F adjusts Suriya’s workload by
reassigning her heavy lifting duties to one of her co-workers and
assigning Suriya some of the co-worker’s duties.
Example: Jack and Lily work on the same team. Jack requests permission
to readjust his schedule so that he can leave work early to pick up
his daughter from pre-school. Lily requests a delayed start time so
that she can take her mother to her weekly physical therapy sessions.
Amar, their supervisor, grants both requests on the condition that
Jack represent the team at early morning meetings and Lily represent
the team at late afternoon meetings.
Provide reasonable personal or sick leave to allow employees to engage
in caregiving even if not required to do so by the Family and Medical
Leave Act of 1993 (FMLA).[41]
Permit employees to use sick leave to care for family members who are
ill and/or to handle medical emergencies involving family members.
[42]
Engage in dialogue with employees to determine the amount of leave
that is appropriate and acceptable based on their workload, upcoming
deadlines and personal circumstances.
Ensure that leave policies exist and are available to male and female
employees on an equal basis. Train managers to ensure that both male
and female employees are aware of leave policies and are not
implicitly or explicitly discouraged from requesting leave.
Example: Employer F offers maternity and paternity leave to employees
upon the birth or adoption of a child. Sue requests maternity leave to
have a baby. Bob requests paternity leave after he and his wife adopt
a baby. Employer F approves Sue’s request but denies Bob’s request,
commenting that as the “family breadwinner,” Bob had a responsibility
to focus on his career. Employer F acknowledged that the company
policies provided for paternity leave, but noted that the policy was
rarely enforced and implied that men who took time off risked losing
out on high-profile assignments. Employer F should ensure that
managers enforce leave policies consistently and without regard to the
gender of the requesting employee. Employer F should not discourage or
punish male employees from requesting leave related to caregiving
responsibilities.
To the extent feasible, permit employees to take leave with little
notice in case of an emergency and to use leave in short increments,
rather than full days or weeks. Caregiving issues may arise suddenly
and unexpectedly, and may be resolved in a relatively short amount of
time.
For example, a child or elderly parent may get sick during the day and
need to see a doctor. Or, a parent may need to make a quick phone call
to ensure that his or her child got home from school safely.
With appropriate communication procedures and leave policies in place,
these situations may be addressed with minimal inconvenience or cost
to the employer.
Establish leave donation banks that enable employees to voluntarily
contribute their leave to co-workers.[43] Some organizations have “use
or lose” leave policies which prohibit employees from accruing and
retaining large amounts of leave. Leave donation banks ensure that
leave does not go to waste and foster an atmosphere of collegiality
and cooperation.
Post employee schedules as early as possible for positions that have
changing work schedules so that employees can arrange in advance for
child care or address other personal responsibilities, thereby
enabling them to more readily fulfill work responsibilities.
Promote an inclusive workplace culture. Cultivate a professional work
environment that recognizes and appreciates the contributions of all
staff members and demonstrates respect for employees’ personal lives
and obligations.
Example: Employer G ensures that all employees, including employees
who work part-time or have flexible work schedules, are eligible to
receive awards and recognition for their achievements.
Example: Employer H schedules all-employee meetings and events on
“core days” when employees who work flexible schedules are in the
office and able to attend.
Develop the potential of employees, supervisors, and executives
without regard to caregiving or other personal responsibilities.
Provide training to all workers, including caregivers, to provide them
with the information necessary to perform their jobs well.
Example: When Nejib has to miss Employer I’s annual training session
to take his wife to the doctor, Nejib’s supervisor e-mails him copies
of the training presentations and handouts and provides him with
contact information for the presenters in the event he has questions
or comments. In this situation, Employer I has ensured that Nejib has
both access to the information presented and the ability to follow up
with the appropriate individuals, as necessary, for additional
information.
Ensure that employees are given equal opportunity to participate on
complex or high-profile work assignments that will enhance their
skills and experience and help them ascend to upper-level positions.
Example: Employer J solicits assistance from employees on a large-
scale project for an important client. Nicole has a flexible work
schedule that enables her to work from home several days a week so she
can care for her young son. Nicole volunteers to assist with the
project and is selected for the team. The majority of work for the
project can be performed off-site and circulated electronically to
team members. Nicole also volunteers to come to the office for
meetings with the client.
Example: Same facts as above, except Nicole is not selected for the
project. Necessary files and equipment are stored on-site and cannot
be removed. Furthermore, impromptu team meetings occur frequently so
project members can discuss new developments and share information. As
a result, it would be very difficult for an employee who works
remotely to participate in this assignment. Employer J is justified in
refusing Nicole’s request to participate on this basis.
Provide employees with equal access to workplace networks to
facilitate the development of professional relationships and the
exchange of ideas and information.
Example: Employer K has a mentor program that matches experienced
employees with more recent hires. All employees, including employees
who work part-time or have a flexible work schedule, are eligible to
participate in the program.
Provide support, resource, and/or referral services that offer
caregiver-related information to employees. Such services may include
referral services for local child care centers or assisted living
facilities, adoption assistance services, parenting education classes,
college financing classes, or a toll-free caregiver hotline that
provides guidance and advice to employees who have work-life balance
questions or concerns.[44]
Studies have demonstrated that flexible work policies have a positive
impact on employee engagement and organizational productivity and
profitability.[45] The practices outlined above have the potential to
benefit all workers, regardless of caregiver-status. Furthermore,
these practices have the potential to benefit employers, enabling them
to recruit and retain talented, productive, committed employees.
Finally, these practices will help ensure that all workers enjoy equal
opportunity to compete, advance, and succeed in the workplace.
--------------------------------------------------------------------------------
ENDNOTES
[1] EEOC, Enforcement Guidance: Unlawful Disparate Treatment of
Workers with Caregiving Responsibilities (2007), available at
http://www.eeoc.gov/policy/docs/caregiving.html [hereinafter Caregiver
Guidance]. Title VII of the Civil Rights Act of 1964 prohibits, inter
alia, discrimination based on sex. 42 U.S.C. § 2000e-2 (2009). The
Americans with Disabilities Act of 1990 prohibits discrimination based
on a worker’s association with an individual with a disability. 42
U.S.C. § 12112(b)(4) (2009). Section 501 of the Rehabilitation Act
provides the same protection to federal workers. 29 U.S.C. § 791(g)
(2009) (incorporating ADA standards). Neither the 2007 Guidance nor
this document create a new prohibited basis for discrimination.
Rather, these documents illustrate circumstances in which stereotyping
or other forms of discrimination may violate Title VII or the
Americans with Disabilities Act.
[2] Additional resources on best practices include: EEOC, “Best” Equal
Employment Opportunity Policies, Programs, and Practices in the
Private Sector (2d ed. 1998), available at
http://www.eeoc.gov/abouteeoc/task_reports/practice.html; Univ. of
California, Hastings Coll. of Law, Center for Work-Life Law,
http://www.worklifelaw.org/;Families & Work Inst., Nat’l Study
ofEmployers2008, available at http://familiesandwork.org/site/research/reports/main.html;
WorkingMother,“100BestCompaniesof2008,”http://www.workingmother.com/?
service=vpage/109. See also infra notes 5 - 9.
[3] See Bureau of Labor Statistics, Dep’t of Labor, Employment
Characteristics of Families, Table 4 (2008), available at
http://www.bls.gov/news.release/famee.t04.htm (reporting that 90.7 %
of families with children under age 18 had at least one employed
parent and 62.2 % of married couple families with children had two
employed parents).
Jodie Levin-Epstein, Ctr. for Law & Soc. Policy, Getting Punched: The
Job and Family Clock 7 (2006), available at http://www.clasp.org/publications/getting
_punched_fullnotes.pdf (acknowledging that approximately one in four
workers cares for an elderly relative, and almost one in ten workers
cares for both children and elderly relatives).
Dep’t of Health & Human Servs., Informal Caregiving: Compassion in
Action 11 (1998), available at http://aspe.hhs.gov/daltcp/reports/carebro2.pdf
(stating that 88 % of individuals with caregiving responsibilities for
ill or disabled relatives or friends worked at least 35 hours per
week); U.S. Census Bureau, Disability and American Families: 2000 3,
16 (2005),available at http://www.census.gov/prod/2005pubs/censr-23.pdf
(finding that approximately two in seven families have at least one
family member with a disability, and approximately one in ten families
with children under 18 years of age includes a child with a
disability).
[4] See, e.g., Laura T. Kessler, The Attachment Gap: Employment
Discrimination Law, Women’s Cultural Caregiving, and the Limits of
Economic and Liberal Legal Theory, 34 U. MICH. J.L. REFORM 371, 378-80
(2001) (noting that women continue to serve as the primary caregivers
for children and sick or disabled relatives); Caregiver Guidance,
supra note 1, at nn.15-20 (describing the disproportionate caretaking
duties exercised by employed women of color); Nat’l Alliance for
Caregiving and AARP, Caregiving in the U.S. vi (2004), available at
http://www.caregiving.org/pubs/data.htm (reporting that 39 % of
caregivers are men).
[5] See, e.g., Boston Coll. Ctr. for Work & Family, Overcoming the
Implementation Gap: How 20 Leading Companies are Making Flexibility
Work, Exec. Summary 8-13 (2008) (listing the benefits of workplace
flexibility programs, including employee commitment; talent
recruitment and retention; enhanced customer service; increased
productivity; reduced absenteeism; and coverage across multiple time
zones); Inst. for a Competitive Workforce, Workplace Flexibility:
Employers Respond to the Changing Workforce 2 (2008) [hereinafter
Workplace Flexibility: Employers Respond] (describing workplace
flexibility practices that reinforce the economic competitiveness of
particular geographic regions); Ellen T. Galinsky, James T. Bond and
E. Jeffrey Hill, When Work Works: A Status Report on Workplace
Flexibility 22-24 (2004), available at http://familiesandwork.org/3w/research/downloads/status.pdf
(reporting the correlation between access to flexible work
arrangements and enhanced employee engagement, loyalty, job
satisfaction and mental health).
[6] See generally Corporate Voices for Working Families, Business
Impacts of Flexibility: An Imperative for Expansion 4(2005), available
at http://www.cvworkingfamilies.org/publications/2/9 [hereinafter
Business Impacts] (reviewing the positive impacts of workplace
flexibility policies on talent management; employee satisfaction,
commitment and engagement; customer retention; and financial
performance and productivity); Families & Work Inst., When Work Works:
2008 Guide to Bold New Ideas for Making Work Work 83-84, available at
http://familiesandwork.org/site/research/reports/main.html
[hereinafter Bold New Ideas] (outlining the business results of
flexibility, including increased employee engagement and retention,
decreased turnover, decreased absenteeism and sick days, increased
customer satisfaction, reduced business costs, increased productivity
and profitability, improved staffing coverage, and enhanced innovation
and creativity).
[7] See, e.g., Workplace Flexibility: Employers Respond, supra note 5,
at 9 (quoting Kaye/Bassman CEO Jeff Kaye, who permits employees to
shift from part-time to full-time and back and offers reduced hours
and job-sharing: “Flexibility makes us money”); Business Impacts,
supra note 6, at 20 (describing First Tennessee Bank’s implementation
of work-life balance policies which resulted in $106 million in
profits based on a 50 % increase in employee retention and
satisfaction and a 7 % increase in customer retention). “[F]lexibility
is a driver of financial performance and productivity and is
correlated to increased revenue generation.” Id. at 4.See also Bold
New Ideas, supra note6, at 16 (noting the rapid expansion of retail
contact lens business 1-800-CONTACTS from $3 million to $250 million
in sales in 11 years, an achievement due in large part, according to
the company, to its flexible workplace policies).
[8] See, e.g., Business Impacts, supra note 6, at 4 (“flexibility has
saved individual companies millions of dollars in prevented
turnover”). For example, Deloitte & Touche saved $41.5 million in
turnover-related costs in 2003. Id. at 10. See generally Bold New
Ideas, supra note 6 (summarizing successful work-balance policies that
strengthened retention rates and decreased turnover rates to well
below industry averages for a wide range of organizations).
[9] See Sue Shellenbarger, Perking Up: Some Companies Offer Surprising
New Benefits, Wall St. J., March 18, 2009, at D1 (describing a variety
of programs employers have adopted to enhance employee morale and
retention, including child-care centers, backup child care, academic
scholarships, concierge services, adoption benefits and expanded
health care); Dep’t of Labor, Women’s Bureau, Flex Options
Teleconference: Using Workplace Flexibility as Part of a Downsizing
Strategy 5-7, 10-11 (Feb. 12, 2009), available at http://we-inc.org/20090212transcript.pdf
[hereinafter Flex Options Teleconference] (reviewing workplace
flexibility programs such as contract work, reduced hours and unpaid
vacations with full benefits, which enable businesses to cut costs,
retain employees, and increase productivity);Matt Richtel, More
Companies Are Cutting Labor Costs Without Layoffs, N.Y. Times, Dec.
22, 2008, available at http://www.nytimes.com/2008/12/22/business/22layoffs.html
(reporting an increasing trend of employers imposing four-day
workweeks, unpaid vacations and flexible schedules in an effort to
prevent layoffs). But see Annys Shin, As Cuts Loom, Will Working From
Home Lead to a Layoff?, Wash. Post, March 23, 2009, at A1 (referring
to companies that use flexible work arrangements to cut costs as “the
exception” and noting the reluctance of middle management to embrace
such policies).
[10] See Flex Options Teleconference, supra note 9, at 20 (recalling
the speaker’s recommendation in 1990 that law firms use flexible work
arrangements rather than layoffs “as a way of going lean without being
mean.”). Flexible work arrangements are “a broad cost cutting and
business growth strategy not only to retain valued employees in a
difficult economy but also to meet customer demands, improve
productivity, manage workloads—both up and down cycles—and work
smarter.” Id. at 10.
[11] State and local laws also may prohibit discrimination based on
parental status or caregiving responsibilities. See generally Ctr. for
WorkLife Law, Preventing Discrimination Against Employees with Family
Responsibilities: A Model Policy for Employers 7-8, available at
http://www.worklifelaw.org/EmployerModelPolicy.html.
[12] 42 U.S.C. § 12101 et seq. (2009).
[13] 29 U.S.C. § 206(d) (2009).
[14] 42 U.S.C. § 2000e(k) (2009).
[15] 42 U.S.C. § 2000e et seq. (2009).
[16] 29 U.S.C. § 2601 et seq. (2009). The FMLA is enforced by the U.S.
Department of Labor.
[17] 29 U.S.C. § 1001 et seq (2009). ERISA is enforced by the U.S.
Department of Labor.
[18] See, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365
F.3d 107 (2d Cir. 2004) (gender stereotyping claims based on an
employee’s status as a working mother are legitimate claims under
section 1983).
[19] 65 Fed. Reg. 26,115 (May 2, 2000) (prohibiting discrimination
based on parental status in federal employment practices).
[20] In addition to the federal statutes and regulations that may
impact workers with caregiving responsibilities, several states and
localities have enacted legislation that prohibits employment
discrimination based on parental status or caregiving
responsibilities. See, e.g., Alaska Stat. § 18.80.220 (West 2008)
(prohibiting discrimination based on “parenthood”); D.C. Code Ann. §
2-1402.11 (2009) (prohibiting discrimination based on “family
responsibilities”); Atlanta, Ga., Ordinances ch. 94, art. V, § 112
(2009) (prohibiting discrimination based on “parental status” and
“familial status”); Milwaukee, Wis., Ordinances ch. 109, subch. 3, §
45 (2008) (prohibiting discrimination based on “familial status”);
Tampa, Fla. Ordinances ch. 12, art. II, § 26 (2009) (prohibiting
discrimination based on “familial status”); Cook County, Ill.,
Ordinances ch. 42, art. II, § 35 (prohibiting discrimination based on
“parental status”); Howard County, Md., Ordinances tit. 12, subtit. 2,
§ 208 (2008) (prohibiting discrimination based on “familial status”).
See also Stephanie Bornstein and Julie Weber, Policy Brief: Addressing
Family Responsibilities Discrimination (Sloan Work and Family Research
Network, Boston College and Center for WorkLife Law, UC Hastings
College of Law), Dec. 2008, at 3(asserting that more than 55
localities prohibit employment discrimination based on “familial
status,” “family responsibilities,” “parenthood” or “parental
status”).
[21] See., e.g., Caregiver Guidance, supra note 1, at I.A., available
at http://www.eeoc.gov/policy/docs/caregiving.html#caregive
(describing the range of caregiving responsibilities performed by
workers, including child care, elder care and care for immediate
family members with disabilities).
[22] See, e.g., Achieving Work/Family Balance: Employer Best Practices
for Workers with Caregiving Responsibilities: Equal Employment
Opportunity Commission Meeting on the Commission’s Enforcement
Guidance on Unlawful Disparate Treatment of Workers with Caregiving
Responsibilities (May 23, 2007) [hereinafter Work/Family Balance
Meeting] (statement ofHoracio D. Rozanski, Vice President and Chief
Personnel Officer of Booz Allen Hamilton; Member of the Hidden Brain
Drain Taskforce), available at http://www.eeoc.gov/abouteeoc/meetings/5-23-07/rozanski.html
[hereinafter Rozanski statement] (noting that many women have “work-
life challenges that go beyond biological children and the nuclear
family,” such as elder-care and extended-family responsibilities);
Work/Family Balance Meeting (statement of Dr. Anika K. Warren,
Research Director, Catalyst, Inc.), available at
http://www.eeoc.gov/abouteeoc/meetings/5-23-07/warren.html
[hereinafter Warren statement] (observing that the definition of
“family” may vary based on cultural norms and traditions, and may
include individuals who are not biologically related to each other).
Sexual orientation and marital status are not protected
characteristics under federal employment law. However, state and local
law, as well as company policies, may prohibit such discrimination.
See, e.g., Human Rights Campaign Foundation, The State of the
Workplace for Lesbian, Gay, Bisexual and Transgender Americans 2007 –
2008 1(reporting that 20 states, the District of Columbia, and more
than 180 cities and counties prohibit employment discrimination based
on sexual orientation). Discrimination against caregivers of unmarried
partners based on their caregiving responsibilities might violate such
state or local prohibitions. In addition, 85 % of Fortune 500
companies and 94 % of Fortune 100 companies protect workers from
discrimination based on sexual orientation. Id. Furthermore, several
states prohibit workplace discrimination based on marital status. See,
e.g., Alaska Stat. § 18.80.220 (West 2008); Cal. Govt. Code § 12940
(West 2009); Colo. Rev. Stat. § 8-17-101 (2008) (public works); Fla.
Stat. Ann. § 760.10 (West 2009); Haw. Rev. Stat. Ann. §378-2 (West
2008); 775 Ill. Comp. Stat. 5/1-102 (2009); Mich. Comp. Laws Ann. §
37.2202 (West 2008); Minn. Stat. § 363A.08 (2009); Neb. rev. Stat. §
48-1104 (2008); N.Y. Hum. Rts. Law § 296 (McKinney 2009); N.D. Cent.
Code § 34-11.1-04.1 (2008) (state employment); Wash. Rev. Code Ann. §
49.60.180 (West 2009); Wis. Stat. Ann. § 111.321 (West 2007). In
jurisdictions which prohibit employment discrimination based on sexual
orientation or marital status, discrimination against caregivers of
unmarried partners based on their caregiving responsibilities may be
held unlawful.
[23] See, e.g., Caregiver Guidance, supra note 1, at Example 2,
available at http://www.eeoc.gov/policy/docs/caregiving.html#gender;
Back, 365 F.3d at 115 (elementary school psychologist denied tenure
after her superiors repeatedly voiced concerns about her ability to
juggle her caregiving and work responsibilities, including comments
that it was “not possible for [plaintiff] to be a good mother and have
this job” and that her job was “not for a mother”); Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000)
(telecommunications company director of finance and administration
terminated after senior executives questioned how she managed to
juggle her work, child care and marital responsibilities; asked how
her husband was doing since she was not home to cook for him; and
inquired whether plaintiff would be able to do her job after having a
second child). Noting that his secretary no longer worked late after
having children, one executive commented “that is what happens when we
hire females in the child-bearing years.” Id. at 51. See also Trezza
v. Hartford, Inc., 1998 WL 912101, at *2 (S.D.N.Y. Dec. 30, 1998)
(defendant commented that working mothers could not effectively juggle
both work and caregiving responsibilities, remarking “I don’t see how
you can do either job well”); Moore v. Alabama State Univ., 980 F.
Supp. 426 (M.D. Ala 1997) (university admissions assistant denied
promotion based on defendant’s belief that the position, which
required travel, would prevent her from caring for her family).
[24] See, e.g., Caregiver Guidance, supra note 1, at Example 5,
available at http://www.eeoc.gov/policy/docs/caregiving.html#assumption.
[25] See, e.g., Caregiver Guidance, supra note 1, at II.C, available
at http://www.eeoc.gov/policy/docs/caregiving.html#discrmale. See also
Knussman v. Maryland, 272 F.3d 625, 630 (4th Cir. 2001) (rejecting
male plaintiff’s request for leave to care for his wife and newborn
baby, defendant declared that plaintiff would qualify as a primary
care giver only if his wife were “in a coma or dead”).
[26] See, e.g., Caregiver Guidance, supra note 1, at Examples 7 and 8,
available at http://www.eeoc.gov/policy/docs/caregiving.html#benevolent;
Sheehan v. Donlen Corp., 173 F.3d 1039, 1043 (7th Cir. 1999) (accounts
manager, a mother of three, terminated and told “[h]opefully this will
give you some time to spend at home with your children”); Plaetzer v.
Borton Automotive, Inc., 2004 WL 2066770, at *1 (D. Minn. 2004) (sales
manager told plaintiff, a mother of four, that she should “do the
right thing” and stay home with her children); Trezza, 1998 WL 912101
at *1 (defendant assumed that plaintiff, a mother of two, would not be
interested in a promotion to a position that required frequent travel
because of her family responsibilities); Bailey v. Scott-Gallaher,
Inc., 480 S.E.2d 502, 503(Va. 1997) (defendant terminated plaintiff
after she gave birth, contending that “[her] place was at home with
her child”).
[27] See, e.g., Caregiver Guidance, supra note 1, at II.A.4, available
at http://www.eeoc.gov/policy/docs/caregiving.html#effects; Santiago-
Ramos, 217 F.3d at 50-51 (defendant admitted that it preferred to hire
single women without children who would give 150 % to their job and
expressed concern that women with multiple children would not be able
to manage work and family responsibilities); Trezza, 1998 WL 912101,
at *2 (defendant commented that “women are not good planners,
especially women with kids” and stated that working mothers could not
successfully be good mothers and good workers).
[28] See, e.g., Caregiver Guidance, supra note 1, at II.B, available
at http://www.eeoc.gov/policy/docs/caregiving.html#pregnancy; Bailey,
480 S.E.2d at 503 (defendant terminated plaintiff because “she was no
longer dependable since she had delivered a child . . . babies get
sick sometimes and [plaintiff] would have to miss work to care for her
child . . . [Defendant] needed someone more dependable”).
[29] See, e.g., Caregiver Guidance, supra note 1, at II.A.3, available
at http://www.eeoc.gov/policy/docs/caregiving.html#gender; Gallina v.
Mintz, Levin, et. al., 2005 WL 240390 (4th Cir. 2005) (defendant
expressed disapproval that plaintiff had not admitted during her
interview that she had a child); Back, 365 F.3d at 115 (defendant
asked plaintiff how she was “planning on spacing [her] offspring,”
requested that she “wait until [her son] was in kindergarten to have
another child,” and informed plaintiff that she was being denied
tenure so defendant could have another year to “assess [her] child
care situation”); Santiago-Ramos, 217 F.3d at 50 (defendant asked
plaintiff several times about her ability to juggle work and family
responsibilities); Barbano v. Madison County, 922 F.2d 139 (2d Cir.
1990) (female applicant was asked about her plans to start a family
and was informed that the hiring official did not want to hire a woman
who would get pregnant and quit).
[30] See, e.g., Caregiver Guidance, supra note 1, at II.A.3-4, II.B,
available at http://www.eeoc.gov/policy/docs/caregiving.html#gender;
Gallina, 2005 WL 240390, at *1-2 (defendant ordered plaintiff to
decide whether she wanted to be “a successful mommy or a successful
lawyer” and described a “commitment differential” between male and
female attorneys, noting that “women lawyers have more demands place
[d] on them, and it’s very hard for them to balance when they have a
family”); Back, 365 F.3d at 115 (plaintiff’s supervisor requested that
plaintiff wait until the supervisor retired before getting pregnant,
repeatedly told plaintiff that it was “not possible for [her] to be a
good mother and have this job,” and questioned her commitment to her
job based on her family responsibilities); Plaetzer, 2004 WL 2066770,
at *1 (refusing plaintiff’s request for a fixed schedule during the
summer to enable her to make child care arrangements, defendant stated
that his wife did not have child care issues, that he did not have to
be family friendly and that he did not care about plaintiff’s
problems). Defendant also told plaintiff that, as a woman with a
family, she would always be at a disadvantage at work. Id. See also
Trezza, 1998 WL 912101, at *2 (defendant asserted that “women are not
good planners, especially women with kids” and commented that working
mothers could not be both good mothers and good workers); Sigmon v.
Parker, Chapin, Flattau & Kimpl, 901 F. Supp. 667, 672 (S.D.N.Y. 1995)
(defendant commented, in the presence of two pregnant employees, “With
all these pregnant women around, I guess we should stop hiring
women”); Bailey,480 S.E.2d at 503 (defendant terminated plaintiff
based on its belief that she was no longer reliable after having a
baby, that she belonged at home with her baby, and that her baby would
require her to take time off work).
[31] See, e.g., Santiago-Ramos, 217 F.3d at 51 (a senior executive
admitted that he preferred to hire single women without children who
would give 150 % to the job; a fellow executive said he did not like
women with children working for the company); Trezza, 1998 WL 912101,
at *1-2 (defendant passed over plaintiff, a mother of two, to offer
promotions to female colleagues without children, despite plaintiff’s
qualifications and experience).
[32] See, e.g., Caregiver Guidance, supra note 1, at II.A.3-4,
available at http://www.eeoc.gov/policy/docs/caregiving.html#gender.
See also Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004)
(plaintiff’s manager failed to consider her for a promotion because he
assumed, despite plaintiff’s express interest in receiving a
promotion, that she would not want to relocate her family); Trezza,
1998 WL 912101, at *1 (defendant assumed that plaintiff, a mother of
two, would not be interested in a promotion to a position that
required frequent travel because of her family responsibilities).
[33] See, e.g., Caregiver Guidance, supra note 1, at II.D, available
at http://www.eeoc.gov/policy/docs/caregiving.html#discrwomen. See
also Work/Family Balance Meeting, Warren statement, supra note 22
(concluding that women of color confront stereotypes based on gender,
race, ethnicity, and socio-economic status that are “uniquely
different” than stereotypes confronted by other groups).
[34] See, e.g., Caregiver Guidance, supra note 1, at II.A.2, available
at http://www.eeoc.gov/policy/docs/caregiving.html#male; Phillips v.
Martin Marietta Corp., 400 U.S. 542 (1971) (concluding that Title VII
prohibits the implementation of distinct hiring policies for women
with young children and men with young children); Trezza, 1998 WL
912101, at *1-2 (defendant repeatedly passed over plaintiff, a mother
of two, to offer promotions to male colleagues with children, despite
plaintiff’s superior qualifications and seniority). See also infra
note 35.
[35] See, e.g., Caregiver Guidance, supra note 1, at II.C, available
at http://www.eeoc.gov/policy/docs/caregiving.html#discrmale;
Knussman, 272 F.3d at 630 (denying plaintiff’s request for leave to
care for his wife and newborn baby, defendant stated that plaintiff
could qualify as a primary care giver only if his wife were “in a coma
or dead”); Shafer v. Bd. of Pub. Educ., 903 F.2d 243 (3d Cir. 1990)
(male teacher denied unpaid leave of absence to care for his son;
school policy expressly provided such leave to female employees);
Schultz v. Advocate Health & Hosp. Corp., 2002 WL 32154732 (N.D.Ill.
Oct. 30, 2002) (male maintenance worker alleged defendant interfered
with his FMLA rights and terminated him in retaliation for requesting
unpaid leave to care for his parents).
[36] Walker v. Fred Nesbit Distrib. Co., 331 F. Supp. 2d 780 (S.D.
Iowa 2004) (defendant denied female truck driver’s request for
reassignment to light duty work or imposition of lifting restrictions
during her pregnancy but accommodated male employees with temporary
disabilities due to non-work-related activities); Stansfield v.
O’Reilly Auto., Inc., 2006 WL 1030010 (S.D.Tex. 2006) (defendant
refused to permit plaintiff to request assistance lifting objects
during her pregnancy, although female employees were routinely invited
to solicit assistance from male employees when lifting heavy
objects).
[37] A recent Internet search yielded the following organizations.
Please note that these are a few examples of U.S. recruitment and
staffing agencies that target caregivers. EEOC does not endorse these
organizations or vouch for the services they provide by referencing
them herein. See, e.g., Employmoms, available at http://www.employmoms.com;
Ivy Exec, available at http://www.ivyexec.com; Jobs and Moms,
available at http://www.jobsandmoms.com; Mom Corps, available at
http://www.momcorps.com; Momentum Resources, available at http://www.mom-entum.com;
On Ramps, available at http://www.on-ramps.com; Smart-Moms, available
at http://www.smart-moms.net; Women for Hire, available at
http://www.womenforhire.com; Work-Life Initiative, LLC, available at
http://www.worklifeinitiative.com; W2W Ventures, available at
http://www.w2wventures.com; 2Hats Network, LLC, available at
http://www.2hatsnetwork.com.
[38] Women re-entering the workforce after interruptions of service
are often significantly disadvantaged. For example, women lose an
average of 11% of their earning power when they exit the workforce for
less than one year. Sylvia Ann Hewlett & Carolyn Buck Luce, Off-Ramps
and On-Ramps: Keeping Talented Women on the Road to Success, Harv.
Bus. Rev., Mar. 2005, at 43, 46. When women spend three years or more
out of the workforce, they lose an average of 37% of their earning
power. Id.
[39] For example, consulting firm Booz Allen has reported that it has
used a “ramp up, ramp down” flexible work program to contract as
needed with current employees and employees who recently exited the
workforce. This program enables workers to remain connected to the
workplace through small projects and helps them to keep their skills
and competencies sharp and updated. The program also enables Booz
Allen to contract out projects to trusted workers and helps the
company become the “employer of choice” for many former employees,
especially mothers, when they decide to re-enter the workforce. Id. at
52. Similarly, investment company Lehman Brothers developed the Encore
Program to provide female bankers and traders who had been out of the
workforce for several years with opportunities to update their skills
and interview for jobs. Ernst & Young, Deloitte & Touche and
PriceWaterhouseCoopers have developed similar recruitment programs.
See Work/Family Balance Meeting, supra note 22 (testimony of Dr. Anika
Warren, Research Director, Catalyst, Inc., and Horacio D. Rozanski,
Vice President and Chief Personnel Officer of Booz Allen Hamilton;
Member of the Hidden Brain Drain Taskforce), available at
http://www.eeoc.gov/abouteeoc/meetings/5-23-07/transcript.html.
[40] The practice of paying part-time workers at a lower hourly rate
than full-time workers might violate the Equal Pay Act. See Lovell v.
BBNT Solutions, LLC, 295 F. Supp. 2d 611 (E.D. Va. 2003) (part-time
female worker could compare herself with full-time male worker for
purposes of establishing a prima facie case under the EPA); Section
10: Compensation Discrimination, § 10-IV F.2.h, EEOC Compliance
Manual, Volume II (BNA) (2000) (“employer can justify paying part-time
or temporary workers disproportionately less than full-time or
permanent workers only if it can show that this justification is
related to a legitimate business purpose and is used reasonably in
light of that purpose”).
[41] 29 U.S.C. § 2601 et. seq. (2009). The FMLA covers private sector
employers with at least 50 employees within a 75-mile radius.
Employees must have worked for the employer for at least 12 months or
1,250 hours. Covered employers are required to provide up to 12 weeks
of unpaid medical leave during a 12-month period to eligible employees
for child birth and newborn care, adoption or foster care placement,
care for immediate family members with a serious health condition, or
to handle a serious personal health condition. The FMLA was recently
updated to provide up to 26 weeks of leave to immediate family members
of servicemen and women in certain circumstances. Id. § 2612 (a)(1)
(E), (a)(3).See also The 15th Anniversary of the Family Medical Leave
Act: Achievements and Next Steps: Hearing Before the House Subcomm. on
Workforce Prot., Comm. on Educ. & Labor, 110th Cong. 5-6 (2008)
(statement of Debra Ness, President, National Partnership for Women &
Families) (noting that nearly 40 % of workers in the United States
work for employers with less than 50 employees and that approximately
25 % of workers had worked for their current employer for 12 months or
less).
[42] See, e.g., Work/Family Balance Meeting, supra note 22 (statement
of Donna Klein, President and Chief Executive Officer, Corporate
Voices for Working Families), available at
http://www.eeoc.gov/abouteeoc/meetings/5-23-07/klein.html [hereinafter
Klein statement](describing H-E-B Grocery Company’s MedBank sick leave
program, which provides paid leave for eligible employees who miss
work due to personal illness or injury or the illness or injury of
immediate family members, including spouses, children, parents and in-
laws, and siblings).
[43] For example, the federal government has a voluntary leave
transfer program which enables employees to donate annual leave to
other federal employees who have exhausted their available paid leave.
5 U.S.C. § 6331 – 6340 (2009). See also Montgomery County Educ. Ass’n
Sick Leave Bank: Rules of Procedure 3-4, 8, available at
http://mcea.nea.org/members/sick_leave_bank.php (providing up to 360
days of leave to qualifying members for extended personal illness or
disability purposes).
[44] See, e.g., Work/Family Balance Meeting, Klein statement, supra
note 22 (discussing the Marriot, International, Inc. Associate
Resource Line, which provides employees with confidential assistance
in juggling work and family responsibilities).
[45] See supra notes 5 - 8.
--------------------------------------------------------------------------------
This page was last modified on May 22, 2009.
Return to Home Page
Reply all
Reply to author
Forward
0 new messages