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by Maria Greco Danaher, Esq., Ogletree Deakins

In 2007, during a nationwide upsurge in pregnancy discrimination claims, the EEOC released a set of guidelines advising employers on issues related to caregiver bias.

Following up on that issue, the commission has supplemented those guidelines with recommendations designed to help employers “reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity.” 

You can find the technical assistance document, Employer Best Practices for Workers with Caregiving Responsibilities, at www.eeoc.gov/policy/docs/caregiver-best-practices.html.

What is caregiving responsibility discrimination?

The caregiving responsibilities addressed in the EEOC’s recent guidance include not only child care but caring for parents and older family members as well as relatives with disabilities. Those are issues of increasing importance for employees in the prime earning years, who may find themselves torn over the responsibility to care for minor children and aging parents.

Plus, with military conflicts still raging in Afghanistan and Iraq, many families are dealing with additional care requirements for the children of deployed servicemen and women.

Areas of concern

The “best practices” guidance also addresses issues related to recruitment, hiring and promotion of employees with caregiving responsibilities. 

The EEOC suggests developing job-related qualification standards for each position, to reflect the duties, functions and competencies of the job. Such standards can help minimize the potential for gender stereotyping, which will minimize the opportunity for discrimination.

Another area addressed in the EEOC’s guidance is avoiding discriminatory treatment of caregivers through the “terms, conditions, and privileges of employment.” Specifically, the federal agency suggests monitoring compensation practices for patterns of potential discrimination, and reviewing workplace policies that limit employee flexibility. Of course, this is something many companies are also doing in response to the Lilly Ledbetter legislation.

The “best practices” include a number of flexible and reduced-time options. Several examples offered by the EEOC in this area include:

  • Seeking volunteers first for overtime and then, if necessary, requiring employees to sign up for any remaining shifts
  • Ensuring that all employees, including those who work part time or have flexible work schedules, are eligible to receive awards and recognition for their achievements
  • Scheduling all-employee meetings and events on “core days” when employees who work flexible schedules are in the office.

While not every example will be suitable for every employer, the guidance certainly informs employers of the EEOC’s expectations with respect to caregiver issues.

Many of the suggestions included in the guidance are similar or parallel to actions that employers currently are reviewing or enforcing to ensure compliance with other recent employment law developments. Those include the Lilly Ledbetter Fair Pay Act, the recent FMLA regulations, and the pending Paycheck Fairness Act.

What this means for employers

While the EEOC’s technical guidelines are designated as “best practices”—meaning they are proactive measures recommended by the federal agency and are not statutory requirements—knowledgeable employers recognize that courts turn to the EEOC for direction in interpreting both federal and state anti-discrimination laws.

Therefore, it’s imperative that companies begin to train managers and supervisors on the content of this most recent guidance, to ensure complete awareness of all legal obligations that may have an impact on decisions about the treatment of employees with caregiver responsibilities.

Final tip: Remember that some states also have laws providing leave and other benefits for employees with caregiving responsibilities.

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Author: Maria Greco Danaher regularly represents and counsels companies in employment-related matters. She also specializes in training, counseling and advising human resource departments and management on employment-related topics.

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