It is no secret that employee demographics are rapidly changing. One statistic receiving both state and federal level attention is the increasing number of “caregivers” in the workplace.

The Equal Employment Opportunity Commission (EEOC) recently reported in an Enforcement Guidance that women continue to be the primary caregivers for most family members, including children, parents, in-laws and spouses. Men are doing their part as well, of course. For example, the amount of time men spend on childcare nearly tripled between 1965 and 2003.

According to the EEOC, nearly one-third of families have at least one family member with a disability, and about one in 10 families with children under 18 years of age include a child with a disability. In addition, many employees find themselves in the “sandwich generation” – those individuals between the ages of 30 and 60 who face significant work responsibilities, along with childcare and eldercare duties.

Many state and federal laws provide protections for employees who must tend to personal and family-related matters. These include the Family and Medical Leave Act, the Americans with Disabilities Act (ADA), the California Pregnancy Disability Leave law and the California Family Rights Act, just to name a few. While many statutes also prohibit discrimination based on related protected categories, such as marital status and gender, currently no state or federal laws explicitly prohibit discrimination against workers who are caregivers to family members. That may be about to change.

California Bill Proposes Worker Protections Based on “Familial Status”

State Senator Sheila Kuehl recently introduced Senate Bill 836 (SB 836). This proposed legislation would add “familial status” to the list of classes protected from employment discrimination under the California Fair Employment and Housing Act (FEHA). The FEHA currently prohibits discrimination based on various protected characteristics, including race, religion, color, national origin, ancestry, disability, medical condition, marital status, sex, age, gender identity, and sexual orientation.

In its current form, SB 836 defines “familial status” as “being an individual who is or who will be caring for or supporting a family member.” The term “caring for or supporting a family member” is equally broad, and would cover duties such as providing supervision or transportation; “providing psychological or emotional comfort and support;” addressing medical, educational or nutritional, hygienic or safety needs; and attending to an illness, injury or mental or physical disability.

The proposed definition of “family member” borrows from other statutes, and includes a child (biological, adopted, foster, stepchild, legal ward, child of a domestic partner, or any person to whom the employee stands in “loco parentis”), parent, spouse, domestic partner, parent-in-law, sibling, grandparent or grandchild.

A published analysis of SB 836 suggests the bill was developed to address a significant rise in “family responsibility discrimination cases,” and the lack of direct legal protections for the underlying issues specific to these kinds of cases. According to the analysis, the University of California Hastings’ Center for Worklife Law reported in a recent study that “family responsibility discrimination cases” totaled 481 between 1996 and 2005 – an increase of 400 percent over those reported during the prior decade. The stated intent of SB 836 is to make it easier for caregivers to recover for discriminatory decisions made against them in the workplace.

EEOC Issues Enforcement Guidance on Discriminatory Treatment of Caregivers

The federal government also has shown interest in the disparate treatment of caregivers. In May 2007, the EEOC published an Enforcement Guidance to address this specific topic.

The EEOC recognized in the Guidance that federal equal employment opportunity laws do not explicitly prohibit discrimination against caregivers. However, the agency also emphasized that adverse employment actions taken against caregivers may result in unlawful discrimination under either Title VII or the ADA if there is a nexus to a protected characteristic, such as gender, pregnancy, or disability.

The Guidance provides 20 detailed examples of potential legal violations in this area. These hypotheticals cover discrimination against women with young children (as opposed to pregnancy based issues), discrimination based on employee participation in flexible work arrangements (because of the presumption that caregiving makes an employee less dedicated), denying part-time work to males because of sex-based stereotypes, and denying jobs to applicants who care for individuals with disabilities.

Significantly, in its Guidance, the EEOC “encourages” employers to avoid practices that adversely impact caregivers (whether required by law or not), and to adopt “best practices” that make it “easier for all workers, whether male or female, to balance work and personal responsibilities.” The agency also referred to “substantial evidence” that workplace flexibility enhances employee satisfaction and job performance, and suggested that employers can benefit by adopting such practices by (for example) “saving millions of dollars in retention costs.”

Best Practices

Despite the somewhat limited legal protections for caregivers at this time (SB 836 would change this, of course, at least for California employees), certain workplace conduct when directed toward a caregiver can result in liability. Below are a few tips and pitfalls to avoid:

• Managers and supervisors should be trained not to comment on the reliability or dedication of working parents (male or female). Only objective performance criteria should be considered when making employment decisions.
• Managers and supervisors also should be trained to understand that “benevolent” employment decisions are not always lawful. For example, deciding not to promote a qualified female employee to a job that requires travel merely because she has young children or a disabled spouse äóñ even when well-intended to help the employee avoid hardship äóñ can be evidence of discriminatory motive. The focus must instead be whether the employee is qualified for the promotion.
• Managers and supervisors should not inquire about marital status or caregiver obligations during interviews.
• Managers and supervisors should give work assignments without regard to caregiver obligations, barring a specific arrangement requested by the employee.
• Selecting both males and females for advancement programs may be insufficient to avoid a sex-based discrimination suit if there is evidence of disparate treatment within the sexes (e.g., women with childcare responsibilities are not selected for a training program because they take too much time off from work, etc.)
• When an adverse employment decision is made close in time to an event such as an employee’s pregnancy or request for time off to care for a relative with a disability, employers must ensure there are well-documented, performance based, objective criteria to support the decision.

Evolving workplace demographics are an on-going challenge for most employers. Because employee lifestyle issues can hinder work performance, it can be tempting to take such matters into consideration when making employment decisions. This can obviously lead to trouble, however. To avoid potential liability, employers must ensure all workplace decisions are truly performance based and apply consistent criteria to all employees.