Statement of Dianna Johnston, EEOC Office of Legal Counsel

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

Background

Good morning, Madam Chair, Madam Vice Chair, and Commissioners. I am pleased to be here to speak about the new guidance that we are issuing today on unlawful disparate treatment of workers with caregiving responsibilities.

Changing workplace demographics have created the potential for greater discrimination against workers with caregiving responsibilities. The new guidance is a proactive measure in addressing an emerging discrimination issue in today’s workplace. Caregiving responsibilities vary greatly among individuals and include not only childcare but also eldercare and care of individuals with disabilities. Caregiving responsibilities also can vary by race or ethnicity, and they are increasingly borne by men.

One of the most significant changes since the passage of Title VII nearly 43 years ago has been the increase in the proportion of women who work outside the home, with women now comprising nearly half of the U.S. labor force. The increase has been most dramatic for mothers of young children who are almost twice as likely to be in the labor force today as were their counterparts 30 years ago. Despite the influx of women into the labor force, however, women continue to be most families’ primary caregivers. As a result, working mothers and other female caregivers may be vulnerable to sex-based discrimination that is linked to their caregiving responsibilities.

Since the passage of Title VII, the face of sex discrimination has also changed. During the 1960s, it was not uncommon for newspapers to organize help-wanted ads by sex, with some jobs open only to women and some jobs open only to men. Today, we don’t see that kind of blatant sex discrimination. But other forms of equally pernicious sex discrimination continue to persist. Writing for the Supreme Court in 2003, Chief Justice Rehnquist noted that “the faultline between work and family [is] precisely where sex-based overgeneralization has been and remains strongest.”

Thus, it’s not surprising that unlike sex-segregated help-wanted ads, sex-based discrimination against caregivers continues to take place in the open. In recent cases in which female caregivers have claimed unlawful sex discrimination, employers have allegedly made a host of sex-based comments. In one recent case of a working mother who commuted during the week between her home in New York and her job in Northern Virginia, a supervisor allegedly said that he had “a very difficult time understanding why any man would allow his wife to live away from home during the work week.” In another case in which a school administrator was denied tenure, there was evidence that an official had questioned whether the worker would continue to be committed to her work now that she had “little ones” at home, and whether she could be a good mother and a good employee at the same time.

Sex-based stereotyping is not limited to women and also can result in discrimination against male employees. As Chief Justice Rehnquist noted, “Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. These mutually reinforcing stereotypes create a self-fulfilling cycle of discrimination.” It’s not terribly surprising then that sex-based discrimination against male caregivers also can occur openly. Men who defy sex-based stereotypes by actively assuming greater caregiving responsibilities may face hostility from their employers or coworkers. For instance, in one case, a male worker was allegedly denied “nurturing leave” to care for a newborn baby on the grounds that, as a man, he could not be considered the baby’s primary caregiver unless his wife were dead or in a coma.

As these examples make clear, the clash between work and caregiving responsibilities is most likely to arise in the context of childcare. But it’s important to recognize that other kinds of caregiving are also common and can lead to discrimination. These include caring for individuals with a disability, such as adult children, spouses, or parents. Eldercare is also likely to become more prevalent as the Baby Boomer generation ages. Many of today’s workers are in the “sandwich generation” and are likely to face work responsibilities alongside both childcare and eldercare responsibilities.

In addition to the myriad forms of caregiving, such as childcare and eldercare, workers’ caregiving responsibilities differ. For example, African American women with young children are more likely to be employed than other women raising young children. Women of color also devote more time than do their white counterparts to caring for extended family members, particularly eldercare. Additionally, in the past 40 years, the time that men spend on childcare has nearly tripled, and men spend twice as much time performing household chores.

The federal EEO statutes, however, are limited in scope, and so not all employment decisions adversely affecting caregivers are covered under these statutes. The point of the new guidance is to address illustrate the circumstances in which such decisions constitute unlawful disparate treatment under the EEO statutes.

Before I turn this over to Ernie, I do want to note that this document is what it is today only because of the excellent staff work and interoffice collaboration that have gone into it. The staff in each of the Commissioner’s offices have been intimately involved and incredibly helpful in bringing this project to fruition. Although all offices have significantly contributed, the offices of Vice Chair Silverman and Commissioner Ishimaru deserve particular thanks.

This project was actually begun by Kerry Leibig in the Office of Legal Counsel but she had to turn it over when she herself unexpectedly had to take an extended leave for caregiving purposes. Since then, most of the credit for the document belongs to Ernest Haffner. But for his considerable talents, we would not be here today.

And at this point I would like to turn the presentation over to Ernie to briefly outline these circumstances.

This page was last modified on May 23, 2007.