In a new Enforcement Guidance issued by the EEOC, employers are made aware of the various ways in which Title VII or the ADA may be violated by actions (and reactions) toward employees and applicants seeking to balance work and family obligations. In addition, the EEOC advocates flexible workplace policies and practices, designed to make it easier for employees to strike this balance. The EEOC's attention to so-called "family responsibilities discrimination" means that savvy employers must now view this subject as a risk-management issue.

Background. On May 23, 2007, the Equal Employment Opportunity Commission issued an Enforcement Guidance regarding "Unlawful Disparate Treatment of Workers with Caregiving Responsibilities."1 The new Enforcement Guidance is accompanied by a question-and-answer document.2 The EEOC's stated purpose is to provide guidance to employers, employees, and EEOC investigators in identifying — and preventing — employment discrimination against working parents and other family caregivers.

EEOC interpretive guidelines, such as enforcement guidances, lack the force of law. But EEOC guidelines constitute a body of experience and judgment to which federal courts, litigants, and employers properly resort for guidance.3 And an enforcement guidance provides a crystal-clear view as to how the EEOC will view various situations when investigating a charge of discrimination. It therefore is prudent for employers to recognize the various situations in which the EEOC sees the potential for unlawful disparate treatment in a world in which an increasing number of workers struggle on a daily basis to balance their workplace responsibilities with their family responsibilities related to childcare, eldercare and the like.

Summary. For the past year or so, there has been much attention in human resource and employment law circles to the concept of "family responsibility discrimination." A July 6, 2006, study issued by the Center for WorkLife Law, of the University of California Hastings College of the Law, analyzed a "growing trend" of federal court lawsuits on the subject. This theory, increasingly known by its acronym (FRD), became a common topic of law journal articles, employment blogs and HR publications. There was some speculation that the EEOC would legitimize FRD as a new legal theory, or attempt to identify a new federal class of protected individuals in its anticipated Enforcement Guidance.

That is not the case. The new Enforcement Guidance does not create a new protected class, nor does it announce a new legal theory. Rather, it simply highlights various ways in which an employer's actions toward employees or applicants with family caregiver responsibilities may violate Title VII of the Civil Rights Act of 1964, or the Americans with Disabilities Act of 1990. Experienced employment practitioners will not have trouble spotting the unlawful disparate treatment in the Enforcement Guidance's 20 hypothetical examples, all of which are based on reported federal cases.

There are two societal trends in the United States that appear to be important underpinnings of the EEOC's work in this area, both of which are more-or-less widely recognized truths. The first is that women continue to be most families' primary caregivers, and at the same time, there are many more working moms — particularly mothers of young children — in the United States today than there were, say, 30 years ago. The second trend is that eldercare responsibilities are becoming increasingly important to U.S. workers, and this will only increase as the Baby Boomer population enters retirement in the not-so-distant future. The bulk of the EEOC's research support for the Enforcement Guidance is made up of labor force statistics, law journal articles, and U.S. Census Bureau data regarding these societal trends and related issues.

The unlawful employment practices highlighted in the Enforcement Guidance include the following:

  • Gender discrimination — female caregivers. Title VII may be violated if a female applicant is rejected after an interview discussion about her childcare responsibilities. Similarly, reducing a working mother's job responsibilities after her return from maternity leave, even if done for benevolent reasons, may violate Title VII due to gender-based stereotypes.
  • Gender discrimination — male caregivers. Some employers continue to deny a male employee's request for childcare leave, although a similar request from a female employee is routinely granted. Any leave specifically provided to women, and not to men, must be limited to the time that a woman is incapacitated by pregnancy or childbirth. Otherwise, treating men and women differently as to childcare leave requests may violate Title VII due to gender-based stereotypes.
  • Pregnancy discrimination. A pregnant worker who is temporarily unable to perform some job duties must be treated the same as other workers who have similar restrictions due to non-pregnancy conditions. For example, pregnant employees who miss work time due to pregnancy-related illness, or who have temporary lifting restrictions, must be treated the same as non-pregnant employees with the same limitations.
  • Disability discrimination — relationship with a disabled individual. The ADA prohibits discriminatory treatment of an employee due to his or her relationship with a disabled individual. This provision of the ADA may be violated if, for example, an applicant is rejected because he is a single father with sole custody of a disabled child, if the employer concludes that the applicant's caregiver responsibilities would negatively impact attendance and performance.
  • Retaliation. A recent Supreme Court opinion lowers the standard for "adverse action" in a retaliation suit, such that an employer can be found liable for retaliatory conduct if the employer's actions "dissuaded a reasonable worker from making or supporting a charge of discrimination."4 The new Enforcement Guidance focuses this standard on workers who are family caregivers, because such workers (according to the EEOC) are "particularly vulnerable" to retaliation. For example, unfortunate remarks by a supervisor along the lines of "silence is the best policy" may be more likely to deter a working single mom from filing an EEOC charge, as compared to a co worker who does not have significant caregiver responsibilities.
Bottom line. The new Enforcement Guidance does not attempt to push employment discrimination law in a new direction. It does, however, shed light on a collection of common workplace issues that employers should be aware of — which are likely to increase due to societal trends. The EEOC's attention to this subject ensures that family responsibility discrimination will continue to be a source of discussion. And lawsuits.

1The EEOC's Enforcement Guidance can be found at: www.eeoc.gov/policy/docs/caregiving.html.

2The EEOC's question-and-answer document can be found at: www.eeoc.gov/policy/docs/qanda_caregiving.html.

3See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986).

4Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2415 (2006).