Statement of Ernest Haffner, EEOC Office of Legal Counsel

Meeting of May 23, 2007 - Achieving Work-Family Balance:  Employer Best Practices for Workers with Caregiving Responsibilities

Legal Principles

In the next few minutes, I’ll present a brief overview of the new guidance. The basic legal principles are not new. Disparate treatment claims involving caregivers are analyzed no differently than claims filed by anyone else.

As with any other worker, a caregiver is only protected against discrimination if it is based on one of the protected characteristics that are specifically covered by the EEO laws. Discrimination based purely on parental or caregiver status is not protected. However, the EEO laws do reach discrimination against caregivers that is based on sex, race, or any other protected status, just as they reach claims brought by non-caregivers that are based on a protected EEO status.

The crucial question then is, When is discrimination against a particular caregiver unlawful disparate treatment based on sex, race, or some other protected status?

The new enforcement guidance provides assistance to EEOC investigators, as well as to employers, employees, and other stakeholders, in answering that question. In addition to the guidance, the Office of Legal Counsel will provide training for EEOC staff on recognizing, investigating, and analyzing caregiver claims.

What makes caregiver claims unique is their context. They involve a working mother, a woman of color, or a new father encountering a discriminatory workplace barrier that prevents them from being able to balance work and family responsibilities.

Not surprisingly, one of the common barriers faced by workers is sex-based stereotypes about caregiving, and childcare in particular. These stereotypes are at the root of many instances of disparate treatment of caregivers.

Under the EEO statutes, workers are entitled to be evaluated as individuals, not as members of groups that share common characteristics. Caregivers are sometimes subjected to unlawful disparate treatment that violates this cardinal principle. For example, an employer may assume that a new mother will not be as committed to the workplace as she was before she had a baby or that a pregnant worker will be less dependable than other workers.

In a recent case, the Second Circuit stated that it “takes no special training to discern stereotyping in the view that a woman cannot ‘be a good mother’ and have a job that requires long hours, or in the statement that a mother who received tenure ‘would not show the same level of commitment [she] had shown because [she] had little ones at home.’” Such stereotyping places women with caregiving responsibilities in a “double bind” in which they are simultaneously viewed by their employers as “bad mothers” investing time and resources into their careers and “bad workers” for devoting time and attention to their families.

Disparate treatment based on hostility toward workers who assume caregiving responsibilities is not limited to women and also impacts men, who face different but equally harmful sex-based stereotypes. For example, perceptions about men and caregiving might lead to a father’s being harassed after he switches to a part-time schedule to take care of his son so that his wife can attend law school.

Some discrimination of caregivers is based on an employer’s perceptions of what is in the worker’s best interest. For example, in a recent case, the Seventh Circuit stated that “[r]ealism requires acknowledgment that the average mother is more sensitive than the average father to the possibly disruptive effect on children of moving to another city.” Nevertheless, it was unlawful sex discrimination for a supervisor to assume that a working mother would not want to accept a promotion that would require her to relocate.

In addition to leading to assumptions about how female employees might balance work and caregiving responsibilities, gender stereotypes of caregivers may more broadly affect perceptions of a worker’s general competence. Such stereotyping can be based on unconscious bias, particularly where officials engaged in subjective decisionmaking. A recent study by researchers at Cornell University found evidence of a “motherhood penalty” in which women are penalized merely for the fact of being mothers. The effects of such discrimination can include a lower chance of being hired for a mother than for men or women without children, a lower starting salary, and even being treated more harshly for tardiness.

In addition to sex and pregnancy discrimination, there are other EEO protections that may be implicated in a caregiver claim. This is particularly true for women of color. At the Commission meeting on April 17th, Jennifer Tucker, Vice President of the Center for Women and Policy, explained that women of color do not experience their workplace cultures with their race and sex neatly compartmentalized as two separate facts of life. Thus, it is common for women of color with caregiving responsibilities to encounter discrimination that is based on both race and sex. For example, harassment directed at a Latina based on her ethnicity might escalate after she becomes pregnant.

Finally, unlawful disparate treatment of a caregiver might be based on his or her responsibility to care for an individual with a disability. For example, an employer might refuse to consider a male worker whose wife has a severe form of multiple sclerosis because it is concerned that the worker’s responsibilities for caring for his wife will keep him from being able to perform the job. As with pregnancy and sex-based stereotypes, unfavorable employment decisions based on such assumptions are unlawful.

In closing, I wanted to circle back to an observation that Dianna made in her remarks. Unlike many other forms of discrimination, discrimination against working mothers and other caregivers is often blatant. Hopefully, with the issuance of this guidance, that situation will change, and caregivers will not be held to different standards than other workers.

This page was last modified on May 23, 2007.