Earlier this year, the Equal Employment Opportunity Commission (EEOC) issued a technical assistance document, “Employer Best Practices for Workers with Caregiving Responsibilities.”  The best practices document supplements an EEOC guidance document from 2007, “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities” that examines how federal anti-discrimination laws apply to workers with caregiving responsibilities.  Although the concepts of “caregivers” and workers with “caregiving responsibilities” are not specifically protected classifications under Title VII, the Family and Medical Leave Act (FMLA), the Rehabilitation Act or other federal employment discrimination laws, the EEOC contends that certain gender, racial or other stereotypes in the workplace can result in practices that adversely impact employees with caregiving responsibilities.

As always, although it is unknown at this time what enforcement efforts the EEOC will undertake in conjunction with the “Best Practices” policy, it is important to be aware of the Commission’s recommendations.  The EEOC takes a broad view of workers with caregiving responsibilities, encompassing employees with spouses and children, as well as those supporting parents or other older family members, or relatives with disabilities.  “Best practices,” as understood by the EEOC, are proactive measures that go beyond federal anti-discrimination requirements of laws such as Title VII and the FMLA to remove barriers to equal employment opportunities for all.

Establishing a Policy of “Best Practices” to Protect the Employment Rights of Caregivers

The EEOC recommends the following steps, among others, as “best practices” to protect the rights and responsibilities of caregivers:

• define the terms “caregiver,” “caregiving responsibilities” and “family” inclusively, beyond children and spouses to include individuals for whom an employee or an applicant for employment has primary caretaking responsibility;
• describe common, unlawful biases and stereotypes, such as assuming that female workers’ caregiving responsibilities will interfere with their ability to succeed at work, or assuming that male workers do not, or should not, have significant caregiving responsibilities;
• provide examples of prohibited conduct related to workers’ caregiving responsibilities, such as asking female (but not male) applicants or employees about their caregiving responsibilities, making stereotypical comments about pregnant workers or female caregivers, steering women with caregiving responsibilities to less prestigious or lower-paid positions,  or treating male workers with caregiving responsibilities more, or less, favorably than female workers with caregiving responsibilities;
• prohibit retaliation against individuals who report discrimination or harassment based on caregiving responsibilities, or who provide information related to such complaints; and,
• identify an office or person that staff may contact if they have questions or need to file a complaint related to caregiver discrimination. 

In order to implement these “best practices” policies after they are in place, the EEOC then recommends that the employer should:  (1) ensure that managers at all levels are aware of, and comply with, the organization’s work-life policies; (2) respond to complaints of caregiver discrimination efficiently and effectively; and, (3) protect against retaliation as complaints are investigated and resolved.

Recruitment, Hiring and Promotion

The EEOC emphasizes that to establish the best workplace practices to protect the rights of caregivers, an employer’s policy on caregivers should not only be structured to respond to complaints, but also proactively designed to consider policies and practices on the recruitment, hiring and promotion of employees.  For instance, in reviewing an applicant’s qualifications for a particular job, the EEOC’s “best practices” guidance would dictate that a manager should not ask questions about an applicant’s or employee’s children, plans to start a family, pregnancy or other caregiving responsibilities.  For existing employees, the EEOC’s “best practices” would dictate that an employer should develop specific, job-related qualifications for each position that reflect the duties, functions and competencies of the position and minimize the potential for gender stereotyping and other unlawful discrimination against caregivers.  “Best practices” in this area would also require managers ensure that job openings, acting positions and opportunities for promotions are communicated to all eligible employees regardless of caregiving responsibilities.  The EEOC’s paper also encourages employers to establish recruitment practices that target individuals with caregiving responsibilities by, for instance, advertising positions in parenting magazines or other publications or web-sites that are directed at caregivers.  To implement “best practices” in this area, employers should also recognize that individuals with caregiving responsibilities may have taken leaves of absence from the workforce due to caregiving responsibilities.  If so, an employer should give applicants, or employees seeking promotion, the same consideration for their cumulative, relevant experience that is given to an applicant or employee with uninterrupted service.  Finally, the EEOC emphasizes that “best practices” in this area means employment decisions should be transparent, to prevent misunderstandings, and well-documented so that the decision is defensible in the face of potential claims of unlawful discrimination.

Terms, Conditions and Privileges of Employment

The EEOC emphasizes that an employer attempting to implement “best practices” for employee caregivers should regularly review its employment policies and practices for impact on the rights of worker-caregivers.  For instance, the EEOC guide emphasized that there should be no references to an employees’ caregiving responsibilities in regular performance appraisals.  The EEOC also discourages workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, and encourages employers to review such policies to ensure that they are necessary to business operations.  The EEOC’s guide mentions favorably reduced time options, such as part-time positions or job sharing programs, as often valuable to workers with caregiving responsibilities.  Further, the EEOC recommends that managers grant reasonable personal or sick leave requests to allow employees to attend to caregiving responsibilities and also to cultivate a professional work environment that recognizes and appreciates the contributions of all staff members and demonstrates respect for employees’ personal lives and obligations.

It is likely that many employers already have practices in place that comply with the EEOC’s “best practices” guidance – simply by virtue of their regular, employment discrimination compliance efforts.  The EEOC’s technical assistance document provides a number of hypothetical situations and suggests how employers can respond to these situations in a manner which best accomplishes the goal of protecting the rights of workers with caregiving responsibilities.  The paper also cites to studies that show that best practices in this area actually benefit employers by enabling them to recruit and retain talented, productive, committed employees.  The EEOC’s document is available at www.eeoc.gov/policy/docs/caregivers-best-practices.html.

Rory P. Callahan
Assistant Attorney General