Iowa Employment Law Blog : Iowa Employment Lawyer & Attorney : Patrick Smith : Bradshaw Fowler Proctor & Fairgrave Law Firm : Des Moines, Central IA Discrimination & Labor Law

One of the best ways to predict this year's trends in discrimination litigation is to examine last year’s charge statistics from the EEOC and the Iowa Civil Rights Commission.    Any person who claims a violation of the state or federal anti-discrimination laws must first file an administrative charge with one or the other of these agencies.    While each agency has its own procedures, generally they will issue a “right to sue” letter after conducting a preliminary investigation of the complaint. Last year’s administrative charges become this year’s lawsuits.

In fiscal year 2010, EEOC received a record 99,922  charges, a 7% increase over 2009.   Despite the increase in charges, EEOC reports that its case inventory has decreased, which means more charges are actually being investigated, settled, or otherwise disposed.    

Other evidence that EEOC is becoming more aggressive is its emphasis on what it calls “systemic enforcement.”   As part of its systemic initiative, EEOC identifies common employer practices that impact a large number of persons in the workforce.   In 2010, 465 systemic investigations were undertaken, and the agency filed 20 class action lawsuits involving systemic type claims, the most ever. One of EEOC's focus in this area involves employer’s use of credit histories as part of the application process, which EEOC claims can have a racially discriminatory impact. 

EEOC is also focusing of the area of disability discrimination.  The final regulations interpreting the ADA Amendments Act are expected to be published shortly.    As more disability charges continue to be filed and processed, employers can expect more disability discrimination claims to end up in court.

The silver lining in all these statistics comes from the Iowa Civil Rights Commission, which actually saw a decrease in the number of employment discrimination charges between 2009 and 2010.   It must be noted, however, that the ICRC is itself becoming more aggressive in its investigation and settlement of discrimination charges.  In 2009-10, the total value of mediated settlements with ICRC total $606,486, an increase of 62% over the prior year. 

For additional information and analysis on these issues, I recommend the following:

From Washington D.C. Employment Law Update: Year End Roundup of EEOC Developments, and Upcoming EEOC Regulatory Agenda. 

From Overlawyered: The New (and very activist) Obama EEOC

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On February 9, 2010, U.S. District Judge Linda Reade ordered the Equal Employment Opportunity Commission (link courtesy of Ross Runkel) to pay Cedar Rapids based CRST Van Expedited $4.5 million in attorney’s fees and costs it incurred to defend itself against a meritless sexual harassment lawsuit.

The action started in 2005 when a CRST employee filed an EEOC charge alleging sexual harassment. The Agency never completed its investigation, and the employee herself did not pursue an action in court. Nonetheless, in 2007, the EEOC filed suit in the Northern District of Iowa on behalf of the woman and other unspecified female employees. Ultimately, the EEOC identified 270 women it claimed were victims of sexual harassment at the company.

The court dismissed or granted summary judgment to CRST on all but 67 of the women involved, because of a lack of evidence to support the claims. Later, the court dismissed the claims involving the remaining 67 women.    The reason for the dismissals: the court found the EEOC conducted no investigation of the circumstances involving the 67 before filing the suit on their behalf, and did not make a finding there was reasonable cause to believe discrimination occurred. The EEOC’s failure to investigate, the court concluded, prejudiced CRST because it denied them the opportunity to conciliate and foreclosed the possibility that some of the claims might be settled before the necessity of defending a federal lawsuit.  According to Judge Reade, "the EEOC's actions in pursuing this lawsuit were unreasonable, contrary to the procedure outlined by Title VII, and imposed an unecessary burden on CRST and the court."   She characterized the EEOC's litigation strategy as "sue first, ask questions later."     

Judge Reade’s order was striking not only in the amount of the award but in the fact that it sanctioned a federal agency because of the burden it imposed on a private company to defend itself against claims that did not really exist.   Any company that has been the target of an EEOC lawsuit is likely to cheer Judge Reade’s attorney fee award.   It seems only fair that the Agency should be subject to the same standards as a private litigant when brining a lawsuit; that is, it should be required to have a good faith belief, based upon a reasonable investigation, that its claims are supported by the facts and law.  

Not everyone agrees, however, that the sanction imposed is a good thing. Marcia McCormick at Workplace Prof Blog wonders what alternatives were available to the EEOC. She seems to take the position that the EEOC should have the right to litigate harassment claims of persons who never filed a charge and whose circumstances were never investigated.  

Jon Hyman at Ohio Employer’s Law Blog cheers the result, but warns that this sanction could be a mixed blessing for employers.    He believes it will cause the EEOC to conduct more in-depth investigations of its claims, which could in the end impose more administrative burdens than is commonly the case now.   

A very interesting case that likely is not yet over.  The EEOC believes the decision was wrong and intends to appeal. 

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Thanks to Molly DiBianca of the Delaware Employment Law Blog for including us in the 2009 list of Top Employment Law Blogs.  One of the things I have most enjoyed since launching this blog last April is the collegiality among bloggers and the willingness to share ideas and information. 

Always a good source of practical information, the HR Daily Advisor had two posts this week  dealing with employee's abuse of FMLA leave.   The first addressed the abuse of intermittent leave, and the second tackled the problem of "pattern absences" (such as taking leave on Mondays or Fridays). 

Jon Hyman at Ohio Employer's Law Blog discusses an interview with Phillies' starter Cole Hamels after game 3 of the World Series.   Media reports of the interview contained a quote from Hamels that made it appear he had given up on the Series after his poor game 3 performance.   When considered in the context of the entire interview, however, it was clear Hamels was looking forward to the opportunity to redeem himself in game 7 (alas, a game which never was played).    The lesson for employers: be careful what you say and how you say it, because it is easy to take words out of context, especially for cross-examining lawyers. 

Megan Erickson of the Social Networking Law Blog has two recent posts (here and here) on factors employers should consider before drafting a social networking policy.   With the explosion in social networking over the past year, this has become a hot topic for employers.   See our related posts on this subject here and here.

H1N1 seems to have subsided among school age children in the local area, but now is hitting more adults.   The Washington D.C. Employment Law Update reports that two members of the House of Representatives have introduced a bill that would permit employees five paid sick days if they contract H1N1.  The Emergency Influenza Containment Act would apply to employers with fifteen or more employees.  It would permit both full and part time employees to be paid if sent home by their employer because of the flu. 

Finally, are employers under siege by the EEOC?  This post on Workplace Prof Blog reports on a human resources meeting in Detroit where many attendees reported facing EEOC charges for the first time.   The EEOC denies it is cracking down.   However, there is little doubt that charge statistics are up, and the EEOC's own press releases report the filing of substantially more lawsuits now as compared to one year ago. 

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The EEOC has revised its "Equal Employment Opportunity is the Law" poster.    The poster was revised to reflect new federal employment laws, including the ADA Amendments, and the Genetic Non Discrimination in Employment Act ("GINA").  Employers can either obtain a new poster, or a supplement their existing poster.   The new posting is mandatory effective November 21, 2009.  Up to ten posters can be obtained from the EEOC free of charge, or can be printed from the EEOC's website.

The FMLA Blog reports on amendments to the FMLA the president signed this week.   Among the changes: military care giver leave will now apply to for veterans of the Armed Forces under certain circumstances.  In addition, Qualifying Exigency Leave is expanded to cover members of the regular military who are deployed to a foreign county.  Under existing law, such leave applied only for covered military members in the Reserves or Guard.

The best way to avoid workplace problems--avoid bad hires in the first place.  Two posts this week on HR Daily Advisor (here and here) identify five steps for gathering critical background information about prospective employees without breaking the bank, and while respecting the privacy rights of the applicant. 

A woman in Missouri sued Wal-Mart and other establishments under the ADA for denying access to her Bonnet Macaque monkey.   The Plaintiff claimed the monkey was trained to assist her with anxiety and agoraphobia, and she could not function in public unless the monkey was with her. The U.S. District Court in the Western District of Missouri granted summary judgment  to the defendants, finding that Plaintiff was not disabled, nor was her monkey a "service animal" under the ADA for which the establishments were required to provide reasonable accommodation.

This Bud's for you.  A former Chief of Communications at Anheuser-Busch (now Anheuser Busch in Bev)  filed a lawsuit against the company for gender discrimination.   The former executive claims the company maintains gender bias in pay and promotions, excludes women from social networks, and promotes few women to top jobs and committee posts.   Most shocking to any viewer of beer commercials is this allegation:  that the company fostered a locker room and frat party atmosphere in the workplace.  

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EEOC statistics for the year ended September 30, 2008, the most recent data that is available, show that charges of retaliation increased by 23% compared to the prior year.   In addition, more than 1/3 of the charges filed with the Agency allege retaliation as one of the claims.   According to this article in The Wall Street Journal, retaliation claims have tripled since the EEOC started keeping track of them in 1992.   The statistics don't include data for the year ending 2009, but anecdotal evidence from lawyers and human resource professionals suggests the trend continues to accelerate.

One reason retaliation claims are so common is that it is easier to prove retaliation than discrimination.   An employee who charges retaliation does not have to prove that he was discriminated against--only that he engaged in what is called "protected activity", and as a result the employer took some adverse action against him.  

"Protected activity" includes a broad range of actions, from filing a formal charge with the EEOC or state civil rights commission, complaining to an HR official about harassment, giving an interview in connection with an internal discrimination investigation, or providing testimony in support of another employee who claims discrimination.

A 2006 U.S. Supreme Court decision, Burlington Northern v. White, also made it easier for employees to prove retaliation.   In White, the Court held that the "adverse action" to which an employee is subject does not have to involve something substantial like a termination, demotion, or cut in pay.  Rather, the employer's action need only be "materially adverse" to a "reasonable employee".  What does that mean?  According to the Supreme Court, "materially adverse" means anything that would have "dissuaded a reasonable worker from making or supporting a charge of discrimination"

In Iowa and many other states, an employee may file a retaliation lawsuit if they were terminated for exercising certain legal rights or fulfilling legal obligations.  Examples include reporting an on the job injury, filing a workers' compensation claim, or serving on a jury.  This type of claim is known as "wrongful discharge in violation of public policy."  It is slightly different than retaliation based upon discrimination because it requires an actual termination; some lesser action will not suffice.

This is a lesson most employers and HR Professionals have heard, but it bears repeating: be cautious and deliberate when taking any action against an employee who may have engaged in protected activity.  That does not mean avoiding discipline or other action that is necessary, but it does mean making sure you have legitimate and documented reasons for whatever action is taken. 

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More signs this week that the federal government is ramping up enforcement of employment laws.  The Department of Justice Civil Rights Division is seeking a $22 million budget increase for 2010, and is seeking to hire 50 new attorneys.   Law Memo Employment Law Blog reports that the EEOC has been very active recently in filing lawsuits.   The Agency  filed 32 lawsuits against employers during one seven day period in September.  Add to that 13 new lawsuits filed or announced on September 29 alone.   The Department of Labor is in the process of hiring 250 new investigators to look for wage and hour violations, particularly in the areas of overtime requirements, minimum wage, and employee breaks.   If you have not done so already, now would be a good time to conduct an audit of your employment practices and procedures. 

This post on HR Daily Advisor offers practical advice on how to avoid retaliation claims.  The first rule: don't let managers or supervisors take adverse action against employees who have complained without first checking with HR.

Washington DC Employment Law Update reports that Senate Judiciary Committee Chairman Patrick Leahy (D, VT) announced his committee is going to hold a hearing to investigate whether the Supreme Court has been misinterpreting laws designed to protect workers from discrimination.  On the witness list, Jack Gross, the plaintiff from Des Moines in the case Gross v. FBL Financial Services, Inc.  (See our related post on this subject here, as well as this one from Workplace Prof Blog).   Gross held that an age discrimination plaintiff must prove that age was the "but-for" reason for the adverse employment action; in other words, the employment action would not have been taken "but-for" the employee's age.  Before Gross, most courts required the plaintiff to prove only that age was "a motivating factor".   Amending the ADEA to lower the burden of proof for employees may be added to Congress' list of pending employment legislation.

Are lawyers giving bad advice about the impact of new technology in the workplace?   In this post on the Fistful of Talent blog, Kris Dunn complains that lawyers too often advise clients only about the perils of social networking and other cutting edge communication tools.  She contends this type of legal advice only scares HR professionals away from modern technology, rather than empowering them to use it effectively.   Attorney Anthony Zaller of California Employment Law Report  proposes this solution: if you want practical legal advice about social networking technology, make sure your employment lawyer uses Facebook, LinkedIn or Twitter,  or at least uses a Blackberry or iPhone.   I'm not sure a lawyer's own use of social networking technology will allow them to give better advice on the subject;  but, the point is well taken that clients need solutions to the legal issues this technology presents, not merely warnings about the inevitable lawsuits.  

Next Friday (October 9) I will be presenting a talk entitled "the Brave New World of Employment Law: What's New in 2009 and What to Expect in the Year Ahead" at the 3rd Annual American Corporate Counsel Association (Iowa Chapter) Annual Seminar in Iowa City.  This has become a marquee event for corporate counsel in Iowa, and I look forward to seeing many of you there.

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A recent decision from the Eighth Circuit provides good training material about what "not to do" if you want to your company to avoid being liable for discrimination, and possibly punitive damages.

The EEOC filed suit against Siouxland Oral and Maxillofacial Surgery Associates, a medical clinic in Sioux Falls South Dakota.   The complaint alleged that Siouxland terminated one employee and refused to hire another because of their pregnancy.  

The first employee, Richelle Dooley, had worked for the clinic for two days when she was terminated.   She told the office manager she was pregnant at the time she was filling out health benefit forms.   The next day during a meeting with the business manager, the managing partner was informed about Dooley's pregnancy.   He reportedly responded as follows:

"the young lady we just hired is going to have a baby this summer, she isn't going to be available to work.  It doesn't make any sense to begin training her...when she won't be able to work the summer.... [W] are going to have to let her go."

The business manager and another physician in the clinic apparently told the managing partner they could not terminate Dooley because of her pregnancy.  Nonetheless, she was fired.

When Dooley asked the business manager why she had been fired after only her second day on the job, she says she was told:

"your baby is going to be due during the busy season";  the clinic "never would have hired [you] if they had known [you were] pregnant." 

A few months later, the office was seeking an employee to work in central sterilization and post-operative recovery.   Angie Gacke applied for the job.  The following is reported to have occurred in the job interview:

Applicant:  "I don't know if this is a problem or not, but I do want to let you know that I am four months pregnant."

Interviewer: "yes, it's a problem.  You are just going to end up causing more work for everybody else than you will be helping them."   

Applicant:  "my due date is in August"

Interviewer: "that's the middle of our busy season, and we don't grant any vacation or anything to anybody during the busy season."

The clinic's defense to Gacke's failure to hire claim was that she was overqualified.   The interviewer had written the following on a copy of her resume:

"overqualified for job", she "needed insurance", and she was "4 months pregnant!"

Based upon this evidence, the jury found Siouxland had discriminated against the plaintiffs because of their pregnancy.  However, the trial court refused to instruct the jury about punitive damages.    On appeal, the Eighth Circuit found there was evidence managerial employees engaged in discrimination while knowing that such discrimination was prohibited by federal law.  The Appellate Court held it was error to grant Siouxland judgment as a matter of law on the punitive damages claims, and remanded for a new trial solely on the issue of punitive damages.

Enough said.

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This week we are trying out a new feature on our Blog.  A weekly round-up of important, interesting, practical, or funny employment law information and news posted in blogs or otherwise on the world wide web during the past week.  Please contact us with any information or feedback.  Here we go for the first edition:

The Des Moines Register reports that key information was withheld from the Iowa Civil Rights Commission in connection with its investigation of racial bias by Iowa Workforce Development.    The investigation is part of a class action lawsuit alleging the Agency engaged in a pattern of failing to hire black applicants over a number of year.

New ADA Regulations coming soon.   The Washington Labor & Employment Wire notes that the EEOC voted to publish a Notice of Proposed Rule making.  Once the proposed regulations are published, there is a 60 day period for comments from the public.   The EEOC press release on the subject is here.    The EEOC has also published a Q&A document concerning the proposed rule making.

 EFCA Report discusses the many high profile politicians that have addressed the AFL-CIO constitutional convention this week.  Senator Specter (D-Pa) discussed a revised EFCA that would eliminate the controversial "card-check" feature of the bill.  However, the revised EFCA would still contain the binding arbitration provision and enhanced penalties for unfair labor practices that business interests strongly oppose.   In addition, while it eliminated card check, the proposed compromise bill shortens dramatically the time period between a petition for election and the actual election, thus reducing the time an employer would have to mount a campaign opposing the union.

Most sexual harassment cases involve female employees complaining about males, but occasionally it is the other way around.  The EEOC announced it is pursuing claims against a South Carolina Time Share resort because of alleged sexual harassment by a female supervisor of a male subordinate.  

For another example of the impact of internet social media on workplace litigation, see this post at the Delaware Employment Law Blog.

Ross Runkel's LawMemo Employment Law Blog contains a link to a 79 page report issued by the U.S. Chamber of Commerce concerning what changes to expect the Obama NLRB. 

Finally, in light of the recent  public outbursts, tantrums, or otherwise offensive remarks Serena Williams, Rep. Joe Wilson (R., S.C.), rapper Kayne West, and other public figures, Work Matters Blog contains a thoughtful post about the art of the apology and how it can contribute to more civil behavior both in and out of the workplace. 

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Two recent cases out of the U.S. Court of Appeals for the Eighth Circuit (which includes Iowa, Nebraska, Minnesota, Missouri, Arkansas, and North and South Dakota) serve as important reminders that employers should be alert to potential claims of religious discrimination and religion based harassment occurring in their work places:

• On July 31, the EEOC announced that AT&T, Inc. paid $1.3 million to satisfy a judgment entered in favor of two employees who were terminated after they took time off work to attend an annual conference of Jehovah's Witnesses.    The judgment was entered after a jury trial in the U.S. District Court for the Eastern District of Arkansas, and was affirmed by the Eighth Circuit Court of Appeals. 

• On July 29, a panel of Eighth Circuit reversed a trial judge's ruling granting summary judgment to an employer in a religious harassment case.   The plaintiff in Winspear v. Community Development, Inc., alleged he was subject to a religiously based hostile work environment by his boss' wife, who also worked for the company as a receptionist.   The Court of Appeals held the trial judge failed to consider whether a hostile work environment was created by the wife's repeated comments that plaintiff's deceased brother was suffering in Hell, and that plaintiff needed to find God to avoid the same fate.   

Claims based upon an employee's religion are not as common as those based upon other protected characteristics, such as sex, race, age, or disability.  Nonetheless, EEOC statistics reflect an increasing number of charges alleging religious discrimination or harassment.  In response to this trend, the EEOC published the following documents to assist employers in evaluating their rights and obligations under Title VII's prohibition against discrimination on the basis of religion:

•  Questions and Answers: Religious Discrimination in the Workplace provides helpful information in an easy to follow question and answer format. 
•  Best Practices for Eradicating Religious Discrimination in the Workplace identifies practices for both employers and employees to reduce the probability of religious based conflict and charges of religious discrimination.  The "Best Practices" document discusses issues relating to hiring and discipline of employees without regard to religion, reasonable accommodation of employee religious practices, avoiding religion based harassment, and retaliation. 
• Questions and Answers about Employer Responsibilities Concerning the Employment of Muslims, Arabs, South Asians, and Sikhs was published to address the increasing number of claims since September 11, 2001 by employees who are or are perceived to fall within one of these groups.

Some important takeaways from these documents include:

• Employers should have a well publicized and consistently applied anti-harassment policy that specifically includes harassment on the basis of religion or religious practice, including a mechanism for making complaints, allowing for investigations, and preventing retaliation;

• Employers should permit non-disruptive and non-harassing religious expression among employees to the same extent other types of personal expression is allowed;

• Supervisors should be permitted to engage in religious expression, but they should avoid expressing themselves in a manner that a subordinate could perceive as coercive, even if not intended that way;

• Polices and practices concerning the reasonable accommodation of employee's religious practices should be developed and communicated to employees.  Such practices might cover scheduling, breaks for prayer, dress, and grooming; 

• When considering whether an employee's requested accommodation causes undue hardship, or whether a particular religious expression is disruptive, employers should gauge the actual hardship or disruption that will result, and not speculate about what may occur.   Managers should be flexible in exploring alternatives that will permit the employee's religious practice while also allowing the employer to operate its business.

Image: Joan of Arc (from Flickr)

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Earlier this year, we identified the Amendments to the ADA--known as the "ADAAA" --as one of the top human resources challenges of 2009.   The amendments became effective January 1, 2009.   One of the most significant changes in the new law as compared to the old ADA concerns the definition of "disability".   One of Congress intentions in the ADAAA was to overrule several U.S. Supreme Court cases which had interpreted the meaning of "disability" in a narrow way.   The Court's interpretation of "disability" under the old ADA caused many plaintiffs to have their discrimination suits dismissed because they were deemed as not having a disability.  Under the new law, most lawyers believe it will be much easier for a plaintiff to qualify as disabled.

One question that remained unanswered when the law became effective was whether the new definition of disability applied to alleged acts of discrimination that occurred before January 1, 2009. 

Two U.S. Circuit Courts of Appeal have now answered that question: the Fifth and D.C. Circuits.  In both cases, the courts held the ADAAA was not retroactive, and therefore applied only to alleged discrimination occurring after January 1, 2009.   Thus, for the cases based upon alleged discrimination before that date, the old standards still apply.  While other Circuits, including the Eighth, have not weighed in on this subject, it is doubtful any court will apply the law retroactively.    Unless Congress expressly mandates retroactive application of a law, which it did not in the case of the ADAAA, there is a presumption that it applies only to events that occur after the law becomes effective.    

In addition to decisions on this issue from the courts, it will be wise to keep track of the EEOC's new rules interpreting the ADAAA, which are still being developed.  The EEOC takes the position that the law itself is not retroactive, but it may contend that its regulations interpreting the law will be retroactive to January 1, 2009.  Because courts often defer to the EEOC's interpretation the anti-discrimination laws, the EEOC's rules are important to monitor.

We will keep you posted on decisions from other Circuits, as well as developments in the EEOC, addressing this important issue.

Hat Tip:  World of Work

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As of a couple of day ago, there were 43 reported cases of swine flu--what is now being called "H1N1"--in Iowa.   

Given the continued spread of this virus, employers would be wise to develop plans to deal with H1N1 issues that could affect their employees and their workplace.   The Des Moines Register published an article today  (link here) about the choice many employees make between staying home or going to work when they are sick.    The article suggests that employees who lack paid sick leave are more likely to show up at work when they are sick, thus raising the risk of infection by co-workers and customers.

What should an employer do to protect the health of its employees and customers, while at the same time making sure to comply with employment laws?  The first step is to be informed.  The website pandemicflu.gov provides lots of helpful information and tips to stay abreast of the virus and its spread.

In addition, the EEOC has recently published two articles to assist employers in dealing with H1N1 issues.  The first, ADA Compliant Employer Preparedness for the H1N1 Flu Virus provides guidance on dealing with employee absenteeism and infection control in ways the comply with the disability discrimination laws.    According to the EEOC publication, employers are permitted to gather personal information from employees in connection with pandemic preparation so long as the employer asks broad questions that are not limited to disability related inquiries.   The EEOC even provides a sample questionnaire that complies with the ADA.   In addition, employers may implement common sense infection control procedures without implicating the ADA.

The second EEOC document, entitled Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu), cautions employers about national origin discrimination in light of the fact that the h1N1 virus is believed to have originated in Mexico.   The publication also provided helpful links concerning pre-employment physical exams and disability related questions to employees.

We will continue to keep you posted on developments in this area.

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Employers should take note of a recent EEOC publication entitled "Employer Best Practices for Workers with Caregiving Responsibilities", available on the EEOC website, or by clicking here.   

Although an employee's status as a caregiver is not protected under any federal or Iowa law, the EEOC nonetheless takes the position that discrimination against such employees can constitute discrimination on the basis of characteristics that are legally protected, such as sex or disability.   EEOC "Best Practices" documents do not carry the force of law, but are intended to provide suggestions for practices that employers may adopt to reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity.  Best practices are proactive measures that go beyond federal non-discrimination requirements.    As courts often defer to the EEOC's interpretation of the discrimination laws, employers should familiarize themselves with some of the EEOC's suggestions.

The EEOC recommends that employers develop, disseminate, and enforce a strong EEO policy that clearly addresses the types of conduct that might constitute unlawful discrimination against caregivers based on characteristics protected by federal anti-discrimination laws.   The document states that an "effective" policy should include, among other things, the following:

• Definitions of relevant terms, including “caregiver” and “caregiving responsibilities.
  • Provide an inclusive definition of “family” that extends beyond children and spouses and covers any individual for whom the applicant or employee has primary caretaking responsibilities.
• Describe common stereotypes or biases about caregivers that may result in unlawful conduct, including:
  • assuming that female workers’ caretaking responsibilities will interfere with their ability to succeed in a fast-paced environment;
  • assuming that female workers who work part-time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees;
  • assuming that male workers do not, or should not, have significant caregiving responsibilities;
  • assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work;
  • assuming that female workers who are caregivers are less capable than other workers; and
  • assuming that pregnant workers are less reliable than other workers.
  •  
• Provide examples of prohibited conduct related to workers’ caregiving responsibilities, such as:
  • asking female applicants and employees, but not male applicants and employees, about their child care responsibilities;
  • making stereotypical comments about pregnant workers or female caregivers;
  • treating female workers without caregiving responsibilities more favorably than female caregivers;
  • steering women with caregiving responsibilities to less prestigious or lower-paid positions;
  • treating women of color who have caregiving responsibilities differently than other workers with caregiving responsibilities due to gender, race and/or national origin-based stereotypes;
  • treating male workers with caregiving responsibilities more, or less, favorably than female workers with caregiving responsibilities;
  • denying male workers’, but not female workers’, requests for leave related to caregiving responsibilities; and
  • providing reasonable accommodations for temporary medical conditions but not for pregnancy.

 Proactive employers would do well to review their policies to take into consideration potential discrimination claims by employees with caregiver responsibilities.

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