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Parents and other caregivers as employees - 18 ways to violate federal antidiscrimination laws
July 27, 2007

In the twenty-first century, the average American family no longer fits the "working dad, mom at home" stereotype portrayed in sitcoms from Leave It To Beaver to Everybody Loves Raymond. One result of the change in family demographics is that employee caretaking responsibilities, both childcare and eldercare, present workplace issues with which employers must deal. And deal with evenhandedly, or else run afoul of federal antidiscrimination laws.

New federal guidelines

The federal Equal Employment Opportunity Commission has decided to address these issues in a new document, Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. The guidance deals with employer responsibilities under Title VII, which prohibits disparate treatment based upon sex, and the provisions of the Americans With Disabilities Act (ADA) that prohibit discrimination based on an employee's association with an individual with a disability.

The guidance document outlines employer responsibilities under federal law, in such areas as:

•    Sex-based stereotyping in dealing with caregiving issues;
•    Subjective decision making regarding working mothers;
•    Assumptions about pregnant workers;
•    Discrimination against working fathers and women of color;
•    Stereotyping based on association with an individual with a disability;
•    Hostile work environments affecting caregiving.

A list of "don'ts"

The guidance document offers 18 examples of fact situations involving unlawful discrimination. While many are relatively obvious examples of discrimination, a few are less obvious. Here’s just one of those illustrations:

Unlawful stereotyping based on association with an individual with a disability

An employer is interviewing applicants for a computer programmer position.   The employer determines that one of the applicants, Arnold, is the best qualified, but is reluctant to hire him because he disclosed during the interview that he is a divorced father and has sole custody of his son, who has a disability.  Because the employer concludes that Arnold’s caregiving responsibilities for a person with a disability may have a negative effect on his attendance and work performance, it decides to offer the position to the second best qualified candidate, Fred, and encourages Arnold to apply for any future openings if his caregiving responsibilities change. Under the circumstances, the employer has violated the ADA by refusing to hire Arnold because of his association with an individual with a disability.

Conclusion

It's a good idea for employers to review the guidance document for a brush-up on federal law in this area, and become sensitized to some of the issues that can arise with employee caregiving responsibilities. Always consult the attorney who advises you on labor and employment issues if you have any questions regarding disparate treatment of employees generally, and dealing with employee caregiving responsibilities in particular.

Posted by Jeff Neuburger on July 27, 2007 | Comments (1)