When does discrimination against a caregiver violate federal EEO laws?

Caregiver is not a protected status under federal EEO laws, which do not prohibit discrimination based solely on parental or other caregiver status. Thus, federal EEO laws do not require that employers accommodate caregivers’ needs. However, caregivers may have rights under other federal laws, including the Family and Medical Leave Act.

Unlawful disparate treatment arises where a worker with caregiving responsibilities is subjected to discrimination based on a protected characteristic under federal EEO law. Generally, this means that, under Title VII of the Civil Rights Act of 1964, unlawful disparate treatment arises where a caregiver is subjected to discrimination based on sex and/or race. Unlawful disparate treatment of a caregiver also can arise under the Americans with Disabilities Act of 1990 where an employer discriminates against a worker based on his or her association with an individual with a disability.

Discrimination against a caregiver might violate federal EEO law in several ways:

Treating male caregivers more favorably than female caregivers: Denying women with young children an employment opportunity that is available to men with young children.

Sex-based stereotyping of working women:

• Reassigning a woman to less desirable projects based on the assumption that, as a new mother, she will be less committed to her job.

• Reducing a female employee’s workload after she assumes full-time care of her niece and nephew based on the assumption that, as a female caregiver, she will not want to work overtime.

Subjective decisionmaking: Lowering subjective evaluations of a female employee’s work performance after she becomes the primary caregiver of her grandchildren, despite the absence of an actual decline in work performance.

Assumptions about pregnant workers: Limiting a pregnant worker’s job duties based on pregnancy-related stereotypes.

Discrimination against working fathers: Denying a male caregiver leave to care for an infant under circumstances where such leave would be granted to a female caregiver.

Discrimination against women of color: Reassigning a Latina worker to a lower-paying position after she becomes pregnant.

Stereotyping based on association with an individual with a disability: Refusing to hire a worker who is a single parent of a child with a disability based on the assumption that caregiving responsibilities will make the worker unreliable.

Hostile work environment affecting caregivers:

• Subjecting a female worker to severe or pervasive harassment because she is a mother with young children.

• Subjecting a female worker to severe or pervasive harassment because she is pregnant or has taken maternity leave.

• Subjecting a worker to severe or pervasive harassment because his wife has a disability.

Some state or local laws may provide broader protections for caregivers. Be sure to check State Laws for the law(s) applicable in your state(s).

What should employers be wary of? Although employers do not need to give special preferences to those with family responsibilities, they must be aware of potential problems posed by unenlightened supervisors. Employers should be wary of a supervisor who takes any of the following actions:

• Not hiring or promoting caregivers because of assumptions about their commitment to work;

• Devising employment application scenarios that would, in essence, exclude parents with children;

• Assigning work schedules specifically designed to conflict with caregiver responsibilities;

• Promoting employees without caregiver responsibilities over caregivers who are more qualified;

• Firing or suggesting abortions in lieu of firing, to employees; and

• Firing or demoting employees returning from maternity or paternity leave.

In the end, decisions that affect caregivers should be founded on solid business reasons, and not on stereotypical assumptions.