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Norah E. Olson Bluvshtein

Norah E. Olson Bluvshtein Employment & Labor

nolsonbluvshtein@fredlaw.com
612.492.7299
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Caregiver Discrimination: A New Angle on Sex, Race, and Disability Discrimination

By: NORAH E. OLSON BLUVSHTEIN

August 2007

The Equal Employment Opportunity Commission (EEOC) recently issued written guidance on its approach to sex, race, and disability discrimination claims that involve caregivers. Although the guidance does not create a new protected class for caregivers, it sets forth numerous examples of employer conduct toward pregnant employees, women of color, and male and female caregivers that the EEOC will treat as sex, race, and/or disability discrimination. The guidance serves as a warning to employers to prevent bias against caregivers and indicates the potential legal consequences if they do not.

Why a Guidance on Caregiver Discrimination?


Caregivers include pregnant employees and both male and female employees who care for children or other family members, such as elderly parents or a disabled spouse. The EEOC’s new guidance—Unlawful Disparate Treatment of Workers with Caregiving Responsibilities—attempts to address how gender stereotypes and other forms of bias force caregivers to choose between work and family. The EEOC finds that disproportionately more women than men are primary caregivers, and more women of color than white women work while serving as caregivers. These caregivers may be subject to adverse employment actions based on discriminatory stereotypes of men and women in the workplace.

What Constitutes Caregiver Discrimination?


The EEOC’s guidance indicates the same types of evidence used in other discrimination cases also can be used to prove caregiver bias. Some of the EEOC’s examples of evidence that may prove sex discrimination against female caregivers include the following:

  • Whether the employer asked female applicants, but not male applicants, whether they were married or had young children, or about their childcare and other caregiving responsibilities;
  • Whether company officials made stereotypical or derogatory comments about pregnant workers (e.g., telling the pregnant employee she looked “like a balloon” or to “waddle on over here”) or about working mothers or other female caregivers in general;Whether the company began subjecting an employee to less favorable treatment soon after it became aware that she was pregnant;
  • Whether, despite the absence of a decline in work performance, the company began subjecting the female employee to less favorable treatment after she assumed caregiving responsibilities;
  • Whether female workers without children or other caregiving responsibilities received more favorable treatment than female caregivers based upon stereotypes of mothers or other female caregivers;
  • Whether the company steered or assigned women with caregiving responsibilities to less prestigious or lower-paid positions;
  • Whether male workers with caregiving responsibilities received more favorable treatment than female workers; and
  • Whether the company deviated from workplace policy when it took action regarding the caregiver.

The EEOC’s guidance also emphasizes that sex-stereotyping—whether ill-intentioned or benevolent—violates Title VII. For example, refusing to hire or promote female or male caregivers or pregnant women because of a belief they will be less committed to their jobs is prohibited. Similarly, employers are prohibited from assuming a working mother would not want to decide whether to relocate to another city because it would require uprooting her family, even though the move would mean a promotion. Imposing one’s own stereotypical views of how a female worker should act, for example, that mothers should not work full time, also is prohibited.

To root out such prohibited discrimination, the EEOC will look for these types of evidence:

  • Changes in an employer’s assessment of a worker’s performance that are not linked to changes in the worker’s actual performance and that arise after the worker becomes pregnant or assumes caregiving responsibilities;
  • Subjective assessments that are not supported by specific objective criteria; and
  • Changes in assignments or duties that are not readily explained by nondiscriminatory reasons.

Unlawful stereotyping of caregivers also applies under the Americans with Disabilities Act (ADA). While most employers know the ADA prohibits discrimination against an employee with a disability, fewer may realize it also prohibits discrimination against an employee because of the employee’s association with a disabled person, such as a child, spouse, or parent. The ADA prohibits discriminatory treatment of a worker based on stereotypical assumptions about the worker’s ability to perform job duties satisfactorily while also caring for a disabled relative. For example, an employer may not refuse to hire an otherwise fully-qualified applicant whose spouse is disabled because the employer assumes the applicant would need too much time off for caregiving responsibilities.

Take A Proactive Approach


Employers will want to review their policies and procedures to ensure they comply with the EEOC’s current emphasis on potential caregiver discrimination. Recommended actions at minimum include the following:

  • Provide discrimination prevention training to supervisors and managers about all protected categories under federal and state law (e.g., race, sex, disability, sexual orientation, religion, etc.), including specific examples of conduct prohibited toward caregivers;
  • Treat any complaints of alleged caregiver bias as seriously as you would any other complaints of alleged discrimination or harassment;
  • Investigate complaints promptly and, as needed, take corrective action;
  • Update policies, with the assistance of legal counsel, to reflect that bias against caregivers based on protected class status will not be tolerated; and
  • Address employee performance deficiencies attributable to caregiving responsibilities using the same standards and procedures you apply to other performance deficiencies.

Please contact your Fredrikson & Byron Employment & Labor Law attorney for assistance in discrimination prevention training and/or in responding to complaints of alleged discrimination.

Takeaway


Employers must prevent bias against male and female caregivers.