In today’s fast paced society, many find themselves struggling to juggle work, family, and other responsibilities. Not only do employees want to start their families and still be employed, but many are finding themselves the 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 assuming these caretaking duties as well.
So what does it mean for these employees and their employers?
Unfortunately, those life choices and responsibilities have also led to stereotypes being attributed to this “class” of employees, which, in turn, have led to claims of discrimination and retaliation. Although there exists no specific laws prohibiting discrimination against caregivers per se, claims of gender discrimination, disability discrimination, and retaliation are providing employees with protection.
I’m not stereotyping!
Some employers believe that because a woman is pregnant or has a child that she could not, would not, or should not perform specific work-related tasks. Some employers feel they are protecting a pregnant employee or new mother by denying her promotions to positions that may require relocations or travel or by removing job responsibilities they feel may be too physically demanding or time consuming. Other employers assume pregnant employees, or those with childcare responsibilities, are less dependable and focused than their childless counterparts. These gender stereotypes result in a catch-22 for working mothers, because they are simultaneously viewed by their employers as “bad mothers” for investing time and resources into 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 dependable than male employees, even if the female worker is not pregnant and has not suggested that she will become pregnant.
Men are also not immune to stereotypes. The view of men as “bread winners” 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 they subject men who are primary caregivers to harassment or other disparate treatment.
As for employees who care for disabled relatives, employers assume that these employees are or will be unable to perform job duties satisfactorily at the same as caring for a disabled individual. In fact, some employers have refused to hire such individuals because they assume the applicant will have to use frequent leave time and arrive late due to their responsibility to care for their relative.
This type of stereotyping can lead to liability against an employer for gender or disability discrimination. Moreover, taking adverse action against employees that complain about being treated differently or detrimentally because of their status will also support a retaliation claim.
What an employer should not do:
o Don’t ask only female applicants during an interview whether they are married or have young children or intend to have children. Don’t ask such questions to existing employees either.
o Don’t subject female employees to less favorable treatment once you find out they are pregnant or after they have assumed caregiving responsibilities.
o Don’t deny a male employee’s request for leave for childcare purposes while granting female employees’ requests for the same.
o Don’t steer 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 are concerned that the new position requires more traveling away from home and you assume that a working mother would not want to travel away from her children.
o Don’t treat an employee in need of accommodations to care for a relative or other individual with a disability less favorably because you think they will be unable to do their work and be a caregiver. Certainly don’t refuse to hire someone for those same reasons.
o Don’t retaliate against employees by changing schedules or engaging in any other act that would be reasonably likely to deter working mothers or other caregivers from seeking leave or other protected activity in connection with their responsibilities.
What an employer should do:
o Make your decisions performance-based and in no way motivated by gender or other similar stereotyping.
o Be certain that negative changes in a worker’s performance do not arise after she becomes pregnant or assumes caregiving responsibilities and that her status is in no way linked to changes in her actual performance.
o Be attentive to subjective assessments that are not supported by specific objective criteria.
o Be attentive to changes in assignments or duties that are not readily explained by nondiscriminatory reasons.
o Ensure that any leave of absence specifically provided to women alone is limited to the period that women are incapacitated by pregnancy and childbirth. Otherwise, the same kind of leave should be provided to all employees in a uniform way.
o Protect your employees from offensive comments or other harassment because of their status to avoid a hostile work environment claim.
o Make sure to implement and enforce policies against this treatment and ensure that you take immediate necessary steps to prevent harassment from occurring and to correct any such harassment.
o Conduct prompt and thorough investigations into claims of such treatment and implement corrective and preventive measures to resolve the situation and prevent future problems.
o And as always, protect your employees from retaliation for opposing this type of unlawful discrimination, such as complaining to their employers about gender stereotyping, or for filing a charge with the EEOC or DFEH.
Studies have shown, employers who make the proper adjustments to their policies to clearly define improper conduct against this class of employees see an increase in employee productivity, reductions in absences and, most importantly, keep employers out of litigation. The bottom line, ensuring policies exist and are enforced is good business!
For more information on this subject, please check out EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers With Caregiving Responsibilities, EEOC Notice Number 915.002, 5/23/07.