In today’s fast-paced society, many find themselves struggling to juggle work, family, and other responsibilities. Employees not only want to build their families and continue to work, but many are becoming primary caregivers for their spouses, children, parents, other elderly relatives, or family members with disabilities. While women, particularly women of color, are primarily responsible for these tasks, men have begun to take on these caregiving duties as well.
So what does it mean for these employees and their employers?
Unfortunately, those life choices and responsibilities have also led to stereotyping of this “class” of employees, which, in turn, has led to claims of discrimination and retaliation. Although there are no specific laws that prohibit discrimination against caregivers per se, complaints of gender discrimination, disability discrimination, and retaliation provide protection for employees.
I’m not stereotyping!
Some employers believe that because a woman is pregnant or has a child, she could not, should not, or should not perform specific job-related tasks. Some employers feel they are protecting a pregnant employee or a new mother by denying her promotions to positions that may require relocation or travel or by eliminating job responsibilities they feel may be too physically demanding or time consuming. Other employers assume that pregnant employees or those with childcare responsibilities are less dependent and focused than their childless counterparts. These gender stereotypes trap working mothers because their employers see them simultaneously as “bad mothers” for investing time and resources in their careers and “bad workers” for devoting time and attention to their families. In fact, some employers assume that childcare responsibilities make female employees less dependent than men, even if the female worker is not pregnant and has not suggested that she will be.
Men are also not immune to stereotypes. The view of men as “breadwinners” has led to the perception that a man who works part-time is not a good father, even if he does so to care for his children. Employers have also denied working fathers and other male caregivers opportunities that have been provided to working women, or subject male primary caregivers to harassment or other unequal treatment.
As for employees caring for disabled relatives, employers assume that these employees will not or will not be able to satisfactorily perform their job duties while caring for a disabled person. In fact, some employers have refused to hire such people because they assume the applicant will have to use frequent leave time and be late due to their responsibility to care for his relative.
This type of stereotyping can lead to liability against an employer for gender or disability discrimination. Additionally, taking adverse action against employees who complain of being treated differently or detrimentally because of their status will also support a retaliation claim.
What an employer must No do:
o Do not ask only female applicants during an interview if they are married or have small children or intend to have children. Don’t ask existing employees those questions, either.
o Do not subject female employees to less favorable treatment once you learn they are pregnant or after they have assumed caregiving responsibilities.
o Do not deny a male employee’s request for child care leave while granting the same request to female employees.
o Do not guide or assign women with caregiving responsibilities, or who you know or even believe may choose to become pregnant in the future, to less prestigious or lower paid positions.
o Don’t deny women promotions because you’re worried the new position will require more travel away from home and assume a working mother wouldn’t want to travel far from her children.
o Don’t treat an employee who needs accommodations to care for a relative or other person with a disability less favorably because you think they won’t be able to do their job and be a caregiver. Certainly don’t refuse to hire someone for the same reasons.
o Do not retaliate against employees by changing schedules or engaging in any other act that may reasonably discourage working mothers or other caregivers from seeking leave or other protected activity in connection with their responsibilities.
what employer should do:
o Make your decisions based on performance and in no way motivated by gender or other similar stereotypes.
o Ensure that negative changes in a worker’s performance do not arise after becoming pregnant or assuming caregiving responsibilities and that her status is not in any way related to changes in her actual performance.
o Be attentive to subjective assessments that are not supported by specific objective criteria.
o Watch for changes in assignments or duties that are not easily explained for non-discriminatory reasons.
o Ensure that any leave of absence specifically provided to single women is limited to the period that women are incapacitated by pregnancy and childbirth. Otherwise, the same type of leave must be provided to all employees on a consistent basis.
o Protect your employees from offensive comments or other harassment due to their status to avoid a hostile work environment claim.
o Be sure to implement and enforce policies against such treatment and be sure to take immediate necessary steps to prevent harassment from occurring and to correct such harassment.
o Conduct prompt and thorough investigations into claims of such treatment and implement corrective and preventative measures to resolve the situation and prevent future problems.
o And as always, protect your employees from retaliation for opposing this type of illegal discrimination, such as complaining to their employers about gender stereotyping, or for filing a complaint with the EEOC or DFEH.
Studies have shown that employers who make the appropriate adjustments to their policies to clearly define inappropriate conduct against this class of employees see increases in employee productivity, reductions in absences, and most importantly, keep employees employers out of litigation. The bottom line, ensuring policies are in place and enforced is good business!
For more information on this topic, see EEOC Enforcement Guidance: Unlawful Unequal Treatment of Workers with Caregiving ResponsibilitiesEEOC Notice Number 915.002, 5/23/07.