Family-Duty Discrimination Targets Parents and Caregivers

Posted on Tuesday, March 26, 2019

Mothers of young children are almost twice as likely to be employed today than their counterparts were 30 years ago, according to the EEOC. In addition to childcare duties, many of today's employees have caregiving responsibilities for elderly and disabled relatives.

The EEOC "strongly encourages employers to adopt best practices to make it easier for all workers, whether male or female, to balance work and personal responsibilities. There is substantial evidence that workplace flexibility enhances employee satisfaction and job performance."

- EEOC Enforcement Guidance 
Unlawful Disparate Treatment 
of Workers with Caregiving Responsibilities

Laws Involved

Although there is no federal law specifically prohibiting discrimination based on family responsibilities, here are some of the federal laws that have been used in these type of lawsuits (There may also be state laws that provide additional protection:

Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin. It specifically covers pregnancy-based discrimination.

The Equal Pay Act of 1963, which protects men and women who perform substantially equal work from sex-based wage discrimination.

The Family and Medical Leave Act, which gives employees up to 12 weeks of unpaid leave for certain family and medical reasons.

The prevalence of caregivers in the workplace can lead to the following stereotypes, the EEOC warns:

Women with children or elderly relatives to care for are less competent than other workers and are more committed to their families than their jobs.
Males who share in the responsibilities of caregiving face the perception that they are not well suited to it.

"Employment decisions based on such stereotypes violate the federal antidiscrimination statutes, even when an employer acts upon such stereotypes unconsciously or reflexively," the EEOC states.

In its report, Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, the EEOC notes that making employment decisions based on stereotypes is illegal "because the antidiscrimination laws entitle individuals to be evaluated as individuals rather than members of groups having certain average characteristics."

Family duty discrimination can target employees including pregnant women, mothers and fathers of small children and those with aging parents or sick spouses, according to the Hastings College of Law at the University of California.

"They may be rejected for hire, passed over for promotion, demoted, harassed, or terminated — despite good performance — simply because their employers make personnel decisions based on stereotypical notions of how they will or should act given their family responsibilities," the law school explains. 

How Employees Bring Legal Action

Most family duty lawsuits filed against employers fall under Title VII of the Civil Rights Act of 1964, as well as various state and federal statutes. (See right-hand box for some of the laws involved.) 

The key to a family responsibilities discrimination case is not gender discrimination. Rather, it is job bias against anyone — male, female, parent or non-parent — based on stereotypes about caregivers.

The first major decision in family responsibilities discrimination was Phillips v. Martin Marietta Corp., in which the Supreme Court in 1971 ruled that employers could not refuse to hire women with school-aged children while hiring men with children the same age. Essentially, organizations cannot have separate hiring rules for men and women.

What This Could Mean for Your Organization 

It is important that employers recognize the potential for liability and take necessary steps to avoid getting in legal trouble. Keeping that in mind, here are six tips:

1. Ensure company managers and supervisors don't engage in stereotyping the roles that men or women caregivers should play at work and home. Supervisors and managers sometimes assume employees with family responsibilities will have productivity or attendance problems, will provide care instead of doing work when telecommuting, will not take business trips and will not accept promotions.

2. Review your company's policies and practices to avoid bias and help employees balance family obligations with work obligations. A policy that appears to be neutral can turn into a discriminatory case when applied to someone with family responsibilities. For example, restrictions on leave or absences within certain periods of time become discriminatory if a female employee needs to attend doctor's appointments because she becomes pregnant but cannot take time off during her first six months of employment.

3. Add parental and caregiver status to your company's anti-discrimination policies or make the issue a policy of its own.

4. Encourage managers and supervisors to make personnel decisions based on accomplishments and business needs rather than assumptions about an employee's level of commitment.

5. Offer training to help managers and supervisors with discriminatory attitudes they may be unaware they have.

6. Rethink your company's work/family policies and programs. They should be regarded "not as fringe benefits that can be withdrawn without consequences but as tools for managing future risk," according to the report.

For assistance with your organization's policies, procedures, handbook and training, consult with your attorney and HR advisors. To read the EEOC report, click here.

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