Jottings By An Employer's Lawyer

Wednesday, May 23, 2007

The EEOC's Two Cents Worth on Family Responsibility Discrimination


With Family Responsibility Discrimination as one of the hottest buzz words in employment law these days, you knew it was only a matter of time before the EEOC weighed in. Today was the day as it issued its Enforcement Guidance for Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. In the accompanying Q&A fact sheet the Commission candidly acknowledges that caregivers are not a protected category:

Q: Are caregivers a protected group under the federal EEO statutes?

A: No. The federal EEO statutes do not prohibit discrimination based solely on parental or other caregiver status. Under the federal EEO laws, discrimination must be based on a protected characteristic such as sex or race. However, some state or local laws may provide broader protections for caregivers. A particular caregiver also may have certain rights under other federal laws, including the Family and Medical Leave Act.

Nevertheless, they still offer twenty examples of potential legal problems ranging from "Unlawful discrimination against women with small children" to "Hostile environment based on association with an individual with a disability." Enough ammunition to keep employers awake a night or two.

Here's the complete list of topics covered:

Background and Introduction
Caregiving Responsibilities of Workers
Work-Family Conflicts
Unlawful Disparate Treatment of Caregivers
Sex-based Disparate Treatment of Female Caregivers
Analysis of Evidence
Unlawful Disparate Treatment of Female Caregivers as Compared with Male Caregivers
Unlawful Gender Role Stereotyping of Working Women
Gender-based Assumptions About Future Caregiving Responsibilities
Mixed-motives Cases
Assumptions About the Work Performance of Female Caregivers
“Benevolent” Stereotyping
Effects of Stereotyping on Subjective Assessments of Work Performance
Pregnancy Discrimination
Discrimination Against Male Caregivers
Discrimination Against Women of Color
Unlawful Caregiver Stereotyping Under the Americans with Disabilities Act
Hostile Work Environment
Retaliation

and the background information that the Commission gathered at its May 21st hearing which proceeded today's release can be found here.

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