Charmaine, a mother of two preschool-age children, applied for an opening in her employer’s executive training program, but wasn’t accepted. Although four of the eight who were selected were women, Charmaine—believing she was more qualified than some who got into the program—filed a charge of discrimination with the EEOC.
The EEOC’s investigation revealed that Charmaine had more experience and betterthan several of the other candidates. Plus, while the employer selected both men and women for the program, the only applicants with preschool-age children were men. As a result, the EEOC investigator determined that Charmaine had been subjected to illegal discrimination on the basis of her sex.
But if half of the applicants selected were women, how could the EEOC have determined that Charmaine was discriminated against on the basis of her sex?
The answer: Because Charmaine was treated less favorably than comparable males with caregiving responsibilities, the rejection of her application constituted disparate treatment of female caregivers compared with male caregivers.
New application of existing laws
Charmaine’s case is just one of 20 highlighted in a new EEOC enforcement guidance document concerning disparate treatment of workers with caregiving responsibilities—or “family-responsibility discrimination.”
The guidelines are designed to help determine whether a particular employment decision is discriminatory.
Family-responsibility discrimination is not a new type of discrimination, but rather an application of the existing discrimination laws to a situation that is drawing increasing attention. Thus, there may be situations where employment decisions based on the employee’s child care or elder care responsibilities may violate Title VII (sex discrimination) or the ADA (association discrimination).
In another EEOC example, Arnold applied for a job as a computer programmer. Although he was the best-qualified candidate, the employer was reluctant to hire him because he disclosed in an interview that he had sole custody of a son with a disability. Because the employer concluded that Arnold’s caregiving responsibilities for his disabled son might interfere with his attendance and work performance, it offered the position to the second-best candidate. Refusing to hire Arnold because of his association with a person with a disability violated the ADA.
The guideline examples illustrate discrimination based on stereotypical perceptions of employees, such as sex-based stereotypes of pregnant women and working fathers.
“Benevolent” stereotyping—such as removing a new mother from more complex or time-consuming accounts, or assuming a mother would not want a promotion if it meant moving to another city—may constitute discrimination that is prohibited by Title VII.
Evidence of discrimination
The guidance document contains a list of facts that may provide evidence of unlawful discrimination based on caregiving responsibilities:
- Interviewers ask female applicants, but not males, whether they are married or have young children.
- Decision-makers make derogatory stereotypical comments about pregnant workers, working mothers or other female caregivers.
- The employer begins treating female employees less favorably soon after learning they are pregnant.
- Despite the absence of a decline in work performance, the employer begins treating women less favorably soon after they assume caregiving responsibilities.
- Female workers without children receive more favorable treatment than female caregivers.
- The employer steers women with caregiving responsibilities into less prestigious or lower-paid positions.
- Male workers with caregiving responsibilities receive more favorable treatment than females.
- Statistical evidence shows disparate treatment against pregnant women or female caregivers.
- The employer deviates from standard policies when taking the allegedly discriminatory action.
- The employer’s reason for a challenged action is not credible.
Although guidance documents issued by the EEOC do not have the same legal force as EEOC regulations, they are a good source for understanding the EEOC’s interpretation of the laws it enforces.
Furthermore, they can provide insight about the enforcement areas the EEOC considers especially important. The family-responsibility guidance demonstrates the EEOC’s concern that gender stereotyping and other sorts of bias can impact the careers of parents and others with caregiving responsibilities.
Employers must be especially mindful of their obligations to treat employees with caregiving responsibilities in a nondiscriminatory manner.
You can read the EEOC’s guidance at www.eeoc.gov/policy/docs/caregiving.html.
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