Client Bulletin #372 - For PDF version of this Client Bulletin, click here.
The EEOC has jumped onto the “work-life balance” bandwagon. For years, employers have been bombarded with articles and studies on what that term should mean in today’s working environment. This week, the EEOC announced new enforcement guidance on how employees who care for children, parents, or other family members may be subjected to disparate treatment in violation of Title VII and the Americans with Disabilities Act. To see the guidance, entitled Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, click here.
The EEOC points out in its new guidance document that it is not purporting to create a new “protected class” under the anti-discrimination laws. (Which is a good thing since only Congress can do that.) Rather, the guidance provides examples of stereotyping based on sex, race, or disability that may adversely affect the career paths of employees with childcare, eldercare, or other family responsibilities.
According to the EEOC, unfounded assumptions and stereotypes have more of an effect on women, but “family responsibility discrimination” should not be viewed solely as a women’s issue. Some men face backlash when seeking to take time off of work to care for a child or parent, or they may not be granted leave as readily as their female counterparts. Moreover, the EEOC says that race or national origin may come into the analysis because minority employees tend to be in lower-paying positions that do not provide as much flexibility for family needs.
Most of the EEOC’s guidance is basic “HR 101” that will not be news to any experienced manager: Don’t assume that mothers (or fathers!) can’t fulfill their job responsibilities or will be unreliable; don’t assume that mothers or fathers don’t want to travel, relocate, or get ahead; don’t assume that pregnant women can’t or don’t want to work; don’t apply tougher standards to minority employees; don’t harass parents or pregnant women.
More interesting is the part of the guidance that deals with discrimination against employees who care for disabled relatives. The ADA prohibits discrimination against an employee based on “association” with a person with a disability. For example, it would be unlawful for an employer to make discriminatory assumptions about such employees’ ability to perform their jobs or their desire for success. (The ADA also prohibits discriminating against an applicant or employee because the condition of the “associated” relative may cause the employer’s insurance premiums to increase.) But, employers are not required to make reasonable accommodations to employees who have job-related issues related to their need to care for their relatives, and this includes attendance issues.
(CAVEAT: an employee who misses work to care for a disabled relative may be entitled to time off under the Family and Medical Leave Act.)
Another helpful part of the EEOC guidance concerns employees who fail to meet their responsibilities at work because they are taking care of their families. The guidance makes it clear that, although unfounded stereotypes and assumptions may be unlawful, it is not unlawful to require an employee to meet the performance, attendance, and other legitimate requirements of the job, regardless of family status.
Employees who complain about “family situation discrimination” or harassment, or who file charges related to such, may be protected under the applicable anti-retaliation laws. In this regard, it is important to remember that even a meritless complaint can be protected, if it was a result of a good faith misunderstanding of the law. Finally, employers should be mindful that the FMLA, state leave laws, and their own medical and personal leave policies may come into play when dealing with “family situation discrimination” issues.
If you have a question about “family situation discrimination” or the EEOC’s guidance, feel free to contact any member of Constangy’s litigation practice group or the Constangy attorney of your choice.
Constangy, Brooks & Smith, LLC has counseled employers, exclusively, on labor and employment law matters since 1946. The firm represents Fortune 500 corporations and small companies across the country. More than 100 lawyers work with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, South Carolina, North Carolina, Tennessee, Florida, Alabama, Virginia, Missouri, and Texas. For more information about the firm's labor and employment services, visit www.constangy.com, or call toll free at 866-843-9555.