I. INTRODUCTION
While federal Equal Employment Opportunity laws do not prohibit discrimination against caregivers per se, there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment. The EEOC issued its guidance on this increasingly complicated area of employment law in response to workplace effects involving caregivers. The guidance was not intended to create a new protected category, but rather to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate federal law.
The EEOC believed the guidance was necessary because of the changing workplace demographics, which have created the potential for greater discrimination against working parents and others with caregiving responsibilities. The guidance made clear that “caregiving” encompasses more than childcare issues. It involves eldercare, care for people with disabilities, and foster care. Claims could be made for violations of Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Americans with Disabilities Act and/or the Family and Medical Leave Act, as well as others.
II. BACKGROUND
A. Caregiving Responsibilities of Workers
The prohibition against sex discrimination under Title VII has made it easier for women to enter the labor force. Since Title VII was enacted, the proportion of women who work outside the home has significantly increased, and women now comprise nearly half of the work force in our country. The most dramatic increase has been in the categories of mothers of young children, who are almost twice as likely to be employed today as were their counterparts 30 years ago.
In addition, caregiver responsibilities are increasing dramatically in care to the elderly and it is anticipated that this trend will continue as the Baby Boomer population ages. As with childcare, women are primarily responsible for caring for our elderly. Also included is the impact of caring for individuals with disabilities which is a common responsibility of workers.
Although women are still responsible for a disproportionate share of family caregiving, men’s role has increased too. From a period measured from 1965 to 2003, men have spent more than twice as long performing household chores.
B. Work-Family Conflicts
As more women/mothers have entered the workplace, families have increasingly faced conflicts between work and family responsibilities. The end result at times, has placed limits on employment opportunities of workers with caregiving responsibilities. These conflicts are most readily apparent with lower-paid workers, but professional workers have also been impacted because some women are prevented from advancing in their careers due to their caregiving responsibilities.
III. QUESTIONS AND ANSWERS ABOUT EEOC’S ENFORCEMENT GUIDANCE ON UNLAWFUL DISPARATE TREATMENT OF WORKERS WITH CAREGIVING RESPONSIBILITIES
The questions and answers which follow, illustrate circumstances under which discrimination against a working parent or other caregiver constitutes unlawful disparate treatment under the federal Equal Employment Opportunity law.
Q: Why is the EEOC issuing this document?
A: Changing workplace demographics, including women’s increased participation in the labor force, have created the potential for greater discrimination against working parents and others with caregiving responsibilities. The new guidance is intended to assist employers, employees, and Commission staff in determining whether discrimination against persons with caregiving responsibilities constitutes unlawful disparate treatment under federal EEO law.
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.
Q: When does discrimination against a worker with caregiving responsibilities constitute unlawful disparate treatment?
A: Unlawful disparate treatment arises where a worker with caregiving responsibilities is subjected to discrimination based on a protected characteristic under federal EEO law. Generally, this means that, under Title VII of the Civil Rights Act of 1964, unlawful disparate treatment arises where a caregiver is subjected to discrimination based on sex and/or race. Unlawful disparate treatment of a caregiver also can arise under the Americans with Disabilities Act of 1990 where an employer discriminates against a worker based on his or her association with an individual with a disability.
Q: What are some common circumstances under which discrimination against a worker with caregiving responsibilities might constitute unlawful disparate treatment under federal EEO law?
A: The new enforcement guidance illustrates various circumstances under which discrimination against a caregiver might violate federal EEO law. Examples include: