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.