Keep caregiver bias out of your workplace

Countless employees juggle both work and caregiving responsibilities, which may extend beyond caring for children to caring for parents or other elderly family members or relatives with disabilities. 

One of the easiest and cheapest ways to boost employee morale and productivity, foster employee retention, reduce unscheduled absenteeism and become an employer of choice among applicants is to implement and maintain family-friendly policies that help employees achieve a satisfactory work-life balance. 

Plus, family-friendly policies help decrease complaints of unlawful discrimination. While caregivers are not a protected class, per se, stereotypes and assumptions about caregivers are often at the root of claims under Title VII, the Pregnancy Discrimination Act (PDA), the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA). 

Here are some of the most common stereotypes associated with employees with caregiving responsibilities, as well as the illegal employment actions in which they can manifest, as highlighted by the EEOC’s Unlawful Disparate Treatment Of Workers With Caregiving Responsibilities enforcement guidance. 

This report also includes best practices for helping employees achieve a successful work-life balance, as identified by the EEOC in Employer Best Practices For Workers With Caregiving Responsibilities, a supplement to the enforcement guidance. 

Stereotypes and illegal actions

Here are seven stereotypes that can lead to lawsuit-inducing employment actions.

Stereotype #1: Women with young children will have productivity or attendance problems.

Illegal actions: Refusing to hire or provide training opportunities to mothers, but not fathers.

Example: Charmaine, a mother of two preschool-age children, filed an EEOC charge alleging sex discrimination after she was rejected for an opening in her employer’s executive training program.  The employer asserted that it rejected Charmaine because candidates who were selected had better performance appraisals and/or more managerial experience, and because she was not “executive material.”  The employer also contended that the fact that half of the selectees were women showed that her rejection could not have been because of her gender.

However, an EEOC investigation revealed that Charmaine had more managerial experience, better performance appraisals, and better qualifications than several selectees, including both men and women, as weighted pursuant to the employer’s written selection policy.  In addition, while the employer selected both men and women for the program, the only selectees with preschool-age children were men.  Under the circumstances, an EEOC investigator determined that Charmaine was subjected to discrimination based on her sex.

Stereotype #2: Mothers with young children are not as committed to their careers as fathers, women without children, or women with older children.

Illegal actions: Refusing to promote or give desired assignments to mothers of young children.

Example: An employee alleged that she was denied a promotion based on the sex-based stereotype that mothers with young children neglect their work duties.  A lower court dismissed her claim, but the 1st Circuit kicked it back into play.  The comments by management personnel that swayed the appeals court:

• “Oh my — I did not know you had triplets. Bless you!” written in an email two months prior to the promotion decision.
• “You are a mother.  Would you let your kids off the hook that easy if they made a mess in their room?  Would you clean it or hold them accountable?” said during the promotion interview.
• “It was nothing you did or didn’t do.  It was just that…you have the kids and you have a lot on your plate right now … If the three interviewers were in your position, they would feel overwhelmed” said when informing the employee she did not get the promotion.

The 1st Circuit held that a reasonable jury could find that the employer would not have denied the promotion to a similarly situated man because he had “too much on his plate” and would be “overwhelmed” by the new job, given “the kids.” (Chadwick v. Wellpoint, Inc., 1st Cir., No. 08-1685, 2009)

Stereotype #3: Female employees with child care responsibilities cannot balance family responsibilities with work responsibilities.

Illegal action: Reassigning female employees to work fewer hours so they can tend to child care responsibilities, even though they never requested a schedule change and their performance hasn’t suffered.

Example: Rhonda mentioned to her boss that she had become the guardian of her niece and nephew and they were coming to live with her, so she would need a few days off to help them settle in.  Rhonda’s boss expressed concern that she would be unable to balance her new family responsibilities with her demanding career, and was worried that she would suffer from stress and exhaustion.

Two weeks later, he removed Rhonda from her lead position on three of the firm’s biggest accounts and assigned her to supporting roles handling several smaller accounts.  In doing so, the boss told Rhonda that he was transferring her so that she “would have more time to spend with her new family,” despite the fact that she had asked for no additional leave and had been completing her work in a timely and satisfactory manner.  At the end of the year, Rhonda, for the first time in her seven-year stint at the firm, was denied a pay raise, even though many other workers received raises.  When she asked for an explanation, she was told that she needed to be available to work on bigger accounts if she wanted to receive raises.

Note: The fact that the manager acted without malice — he actually believed he was acting in the employee’s best interests — is not an automatic defense against unlawful sex discrimination.

Stereotype #4: Men are the breadwinners; women are the caregivers.

Illegal action: Failing to give family leave to fathers, but not mothers.

Example: Eric, an elementary school teacher, requested unpaid leave for the upcoming school year for the purpose of caring for his newborn son.  Although the school had a collective bargaining agreement that allowed for up to one year of unpaid leave for various personal reasons, including caring for a newborn, the HR director denied the request.  When Eric pointed out that women had been granted child care leave, the director said, “That’s different. We have to give child care leave to women.”  He suggested that Eric instead request unpaid emergency leave, though that was limited to 90 days.

Note: The EEOC stressed that it’s a violation of Title VII to deny male employees a type of leave, unrelated to pregnancy, that is granted to female employees.

Stereotype #5: Men who are primary caregivers are not ambitious.

Illegal action: Holding a gap in employment to take care of a newborn against male applicants, but not female applicants.

Example: The hiring decision was down to two applicants, Luke and Lauren.  The hiring manager thought Luke had better qualifications, but doubted his professional commitment since he had taken two years off to care for his son.  While Lauren had taken time off to care for her daughter, too, that’s what women are supposed to do, reasoned the manager.  He offered the job to Lauren.

Stereotype #6: Employees with a dependent with a disability will need to use more leave time.

Illegal action: Refusing to hire or promote employees based on their association with an individual with a disability.

Example: An employer interviewed applicants for a computer programmer position.  The employer determined that one of the applicants, Arnold, was the best qualified, but was 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.  The employer concluded that Arnold’s caregiving responsibilities for his son might have a negative effect on his attendance and work performance, and offered the position to the second-best-qualified candidate.  The employer encouraged Arnold to apply for future openings if his caregiving responsibilities changed.

Stereotype #7: Employees who request a special schedule (e.g., flexible work hours, work from home, part-time) to care for an elderly parent aren’t focused on the job.

Illegal action: Downgrading performance appraisals when performance has not slipped.

Example: Jessica was irate to learn that her supervisor rated her on her performance review as below average in meeting deadlines.  Ever since the department head approved her request to work a flexible schedule to tend to her elderly mother’s deteriorating health, she had worked extra hard to make sure she meets or exceeds all deadlines.  If her supervisor downgraded her performance appraisal based on her being allowed to work a flexible schedule and not on an actual performance deficiency, he has engaged in illegal discrimination.

Note: The ADA expressly prohibits discrimination because of the disability of a person with whom an individual has a relationship or association, such as a child, spouse, or parent.  Under this provision, an employer may not treat an employee less favorably based on stereotypical assumptions about the employee’s ability to perform job duties satisfactorily while also providing care to an older family member.

HR’s role: Implementing family-friendly policies, programs

Here’s how to go beyond federal non-discrimination requirements to remove barriers to equal employment and cultivate a family-friendly culture.

• Develop, disseminate, and enforce a strong equal employment opportunity policy that clearly addresses the types of conduct that might constitute unlawful discrimination against caregivers. Define relevant terms, including “caregiver” and “caregiving responsibilities”; describe common stereotypes about caregivers that might result in unlawful conduct; and provide examples of prohibited conduct related to employees’ caregiving responsibilities.
  
  
• Ensure that managers at all levels are aware of, and comply with, the organization’s work-life policies.  It’s imperative that front-line supervisors are not only familiar with the policies, but also are supportive of employees who take advantage of available programs. 
  
  
• With the help of managers, develop specific, job-related qualification standards 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.  Make sure these standards are consistently applied when choosing among candidates for open positions.
  
  
• Implement recruitment practices that target individuals with caregiving responsibilities who are looking to enter or return to the workplace.  Example: Advertise positions in parenting magazines and other publications that are directed at caregivers.
  
  
• Monitor compensation practices and performance appraisal systems for patterns of potential discrimination against caregivers. Check that managers are basing performance appraisals on employees’ actual job performance and not on stereotypes about caregivers.
  
  
• Review workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure that they are necessary to business operations.  If overtime is required, encourage managers make it as family-friendly as possible.  Instruct them to determine whether a voluntary, rather than mandatory, overtime system would meet the needs of their department.  If mandatory overtime is unavoidable, require managers to permit employees to schedule overtime in advance so employees can arrange for child care, elder care, or other caregiving responsibilities.
  
  
• Respond to complaints of caregiver discrimination efficiently and effectively.  Investigate complaints promptly and thoroughly.  If necessary, take corrective action and implement preventive measures to resolve the situation and prevent problems from arising in the future.
  
  
• Protect against retaliation. Provide clear and credible assurances that employees who file complaints or provide information related to complaints about the unfair treatment of caregivers will be protected from retaliation.  Ensure that these anti-retaliation measures are enforced, especially if the complaint is about the employee’s immediate supervisor.

Time is of the essence

Help employees make the most of their time, without affecting their work productivity and without giving the impression of favoritism, by:

1. Allowing flexible schedules when possible. The ability to come in early in order to leave early (or vice versa) can be utilized for any reason, whether a child’s music recital, a parent’s doctor’s appointment, a pet’s vet visit, or an employee’s salon appointment. Employees will appreciate not having to burn vacation or personal time in order to attend to these needs.
   
   
2. Not judging a leave request.  Advise supervisors that they should be less concerned with the reason for an employee’s time off request when deciding whether to grant the request (e.g., taking a sick parent to the doctor versus going to a concert).  Instead, they should look at more objective factors: Does the employee have available time to take?  Is the employee’s work completed and up to par?  Is the request coming at a good time when things are slow, or a bad time when multiple people in the department are already out?
   
   
3. Not requiring one-hour lunches.  Those who get paid by the hour may prefer to take a half-hour lunch and leave a half hour early. Of course, this won’t work if there’s a need for employees to be physically present for the full day.  Keep in mind that leaving “early” may not mean that employees work from 9 to 4:30 instead of their standard 9-to-5 day; it could mean that employees still work from 9 to 5, but because they can take a shorter lunch, they don’t have to stay until 5:30 to finish up their work.
   
   
4. Offering information on services employees need.  Survey employees to find out what’s on their plates.  Do they want advice on selecting a nursing home; a list of lawyers specializing in estate planning; local nutritionists, personal trainers, or wedding planners; do-it-yourself home repair information; or all of the above?  Sometimes finding this information is half the time battle.

Managers’ role: Maintaining family-friendly policies

Family-friendly policies and programs can actually do more harm than good if managers frown upon employees utilizing them or discourage employees from taking advantage of them in the first place by giving off the impression that those who need flexibility are less committed to the job/company, are slackers, or are less deserving of praise and advancement opportunities.  That’s because employees will see the policies as nothing more than “window dressing” and resent the company for, in effect, lying to them.  To ensure your policies and programs net the intended effects, share the following best practices with all managers. 

• Post schedules as early as possible for positions that have changing work schedules.  That way, employees can make advance arrangements for personal responsibilities, thereby enabling them to more readily fulfill work responsibilities.
  
  
• Work with employees, if possible, to create customized flexible work arrangements that meet the specific needs of the employee and employer. 

• Communicate job openings and promotions to all eligible employees, regardless of caregiving responsibilities.  Never assume that certain employees will not be interested in positions that require significant travel or working long or unusual hours.
  
  
• Focus on applicants’ and employees’ qualifications for the job in question.  Do not ask questions about or comment on their children, plans to start a family, pregnancy, or other caregiving-related issues during hiring interviews, promotion interviews, or performance reviews.

• Identify and remove barriers to re-entry for individuals who have taken leaves of absence from the workforce due to caregiving responsibilities.  When reviewing and comparing applicants’ or employees’ work histories for hiring or promotional purposes, focus on work experience and accomplishments and give the same weight to cumulative relevant experience that would be given to workers with uninterrupted service. 

• Develop the potential of employees without regard to caregiving responsibilities.  Provide training opportunities to all workers. 

• Promote an inclusive workplace culture that recognizes and appreciates the contributions of all staff members and demonstrates respect for employees’ personal lives and obligations.