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Joanna L. Grossman

EEOC Recommends Employer "Best Practices" to Promote Work/Family Balance


Tuesday, May 12, 2009

Recently, the Equal Employment Opportunity Commission (EEOC), the agency charged with implementing key federal civil rights laws, issued a "best practices" document for employers on work/family balance. This "technical assistance" document is designed not only to promote compliance with antidiscrimination laws that relate to or affect employees with caregiving responsibilities, but also to encourage employers to adopt policies that go beyond legal minimum requirements.

This document is not binding on employers, yet it is notable for reflecting both the increasing challenges faced by employees with caregiving responsibilities, and the low likelihood of successfully addressing such problems through mere compliance with existing law. As Acting EEOC Chairman Stuart J. Ishimaru stated in a press release accompanying the document, "Today we take another step forward, articulating not just the bare minimum required to avoid unlawful discrimination, but also thinking broadly about the ways in which family-friendly workplace policies can improve workers' ability to balance caregiving responsibilities with work."

Challenges for Employees with Caregiving Responsibilities

The notion of "caregivers" comprising a special class of employees is of relatively recent origin. What separates these employees descriptively from others is that they, in addition to doing paid work, are also engaged in significant caregiving outside of the workplace. Obviously, the biggest subcategory of caregivers is parents, but caregivers also include those engaged in the care of aging parents or relatives with disabilities. These caregiving responsibilities pose a variety of challenges that fall under the general "work/life balance" heading.

These caregiving responsibilities are not distributed evenly across the working population. As the EEOC's best practices document notes, the care of children and other dependents is disproportionately provided by women, and even more disproportionately by women of color. Men's role in parenting and other caregiving has increased, but is still vastly outweighed by women's. At the same time, women's workforce participation has dramatically increased, so that women account today for 46 percent of the workforce, and women's earnings are increasingly important These trends may be further exacerbated by the recessionary economy, in which the vast majority of layoffs have fallen on men (who tend to work in hard-hit industries such as construction and investment banking) and, thus, women's job security and earnings are even more important to family support. There is thus a significant overlap between women's rights and caregivers' rights.

Although every employee faces different challenges in trying to balance work and family, there are common pitfalls for those who engage in both paid work and significant family caregiving. For many caregivers, inflexible workplace policies and insufficient access to leave present the biggest obstacles to their successful balancing of work and family responsibilities. To make matters worse, stereotyping about caregivers is prevalent: Women caregivers are often thought to be less committed to their paid work or to be likely to be less competent because of their actual or likely role in caregiving. Meanwhile, men are thought to be ill-suited for caregiving and thus not in need of parental leave or a flexible work schedule. Prevalent, too, are instances of employer animus or hostility against workers who reveal anything other than a single-minded and uninterrupted commitment to paid work.

The Legal Treatment of "Caregivers"

The EEOC acknowledged caregiving employees as a group in 2007, when it issued its Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. This enforcement guidance – unlike the best practices document – is specifically tailored to explain, and assist in compliance with, existing law. Its express purpose was to "assist investigators, employees, and employers in assessing whether a particular employment decision affecting a caregiver might unlawfully discriminate on the basis of prohibited characteristics. . . ."

No existing law creates a special, protected status for "caregivers." Title VII, however, bans discrimination in the employment context on the basis of sex or pregnancy, and it is sometimes the case that "caregiver discrimination" is in fact sex- or pregnancy-based and thus unlawful. In addition, the Americans with Disabilities Act of 1990 (ADA) prohibits "discrimination because of the disability of an individual with whom the worker has a relationship or association, such as a child, spouse, or parent." The enforcement guidance identifies six circumstances in which discrimination against a caregiver may violate Title VII or the ADA.

  • Sex-based Disparate Treatment of Female Caregivers, including a wide range of conduct from asking only female applicants about marital or parenting status, to steering female caregivers toward lower-paid jobs, to stereotyping female caregivers about their workforce commitment or competence, to imposing a wage penalty on mothers;
  • Pregnancy Discrimination, including the application of stereotyped assumptions about a pregnant woman's work capacity, insistence on a pre-employment pregnancy tests without complying with relevant ADA principles, engaging in "benevolent" protection of pregnant employees, and treating pregnant workers less favorably than other temporarily- disabled workers who are similar in their ability or inability to work;
  • Discrimination Against Male Caregivers, including denying male employees' requests for parental leave while granting similar requests from women, penalizing men for making use of available caregiving leave, and denying men access to flexible work schedules.
  • Discrimination Against Women of Color, including the disproportionate application of stereotypes about female caregiving to women of color;
  • Unlawful Caregiver Stereotyping under the ADA;
  • Hostile Work Environment Harassment, including harassment leveled against pregnant workers, mothers, or disabled workers.

The enforcement guidance also addresses retaliation law, which generally protects individuals against retaliation for invoking their federal anti-discrimination rights. Retaliation is prohibited if it would be reasonably likely to deter an employee from complaining. Caregivers, however, may be swayed more than other employees by particular threats. As the Supreme Court noted in a recent retaliation ruling, which I have written about in a previous column: "A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children."

What the "Best Practices" Document Adds to the Mix

The EEOC's enforcement guidance comprehensively identifies the types of employment practices with respect to caregivers that are most likely to run afoul of existing law. The best practices document takes this project a step further – to suggest particular workplace policies that will not only help employers avoid violating existing law, but also promote better work/life balance for employees with such responsibilities. Part of the EEOC's justification for prompting employers to exceed legal requirements in this regard is research showing that family-friendly workplace policies enhance productivity and aid in employee retention, both components of lowering employer costs.

The best practices document is grouped into three categories: general; recruitment, hiring, and promotion; and terms and conditions. Within each category, it suggests specific policies that promote work/life balance.

In the first category, the EEOC recommends that employers adopt a formal EEO policy that expressly addresses "caregivers" as a class. It recommends that the policy describe common stereotypes or biases about caregivers, and provide examples of prohibited conduct. It also recommends that managers be trained specifically about the range of federal laws that potentially bear on the rights of caregivers, including not only Title VII and the ADA, as mentioned above, but also the Pregnancy Discrimination Act, the Equal Pay Act, the Family and Medical Leave Act, and others. Finally, it recommends that managers to trained and incentivized to support employee efforts to balance work and family responsibilities, to respond to caregiver discrimination complaints effectively, and to avoid unlawful retaliation.

In the second category, the EEOC focuses not only on purging the hiring process of unfair stereotypes about caregiver-employees, but also on encouraging employers to take more proactive efforts to entice and fairly evaluate them. It suggests, among other things, that employers review current hiring practices and pay scales to make sure they do not disadvantage caregivers, ensure that job opportunities are communicated equally to caregivers, engage in targeted recruitment of caregivers, identify and remove barriers to re-entry for workers who have experienced caregiving-related career interruptions, and increase transparency in employment decisionmaking.

Finally, in the third category, the EEOC suggests a number of policies designed to alleviate common conflicts faced by caregiving employees. At the top of the list is better use of flexible work arrangements that allow employees to better blend their home and work responsibilities. Flexibility can be added through variable start and end times to the workday, compressed work weeks, telecommuting, and greater availability of part-time positions. The document suggests that required overtime should be "as family-friendly as possible," and that voluntary overtime should be used if possible. It also suggests greater use of light-duty assignments for pregnant workers, which, as I have written about previously, current law does not go far enough to provide. The document also suggests, importantly, that employers provide reasonable personal or sick leave to facilitate caregiving obligations. The leave mandated by current law is clearly insufficient to meet the needs of most pregnant women and parents.

In conclusion, the best practices document cites research demonstrating "that flexible work policies have a positive impact on employee engagement and organizational productivity and profitability." And certainly, such policies have the potential to benefit employees, particularly women, who shoulder disproportionate responsibility for both parenting and elder care.

The Bottom Line: The EEOC Has Made Important Progress for Caregivers

The EEOC has taken an important step here to push employers beyond the mandates of existing law. Decades of anti-discrimination law have been extraordinarily important to the removal of formal barriers to the workplace faced by women and minorities. Yet until now, the law has proven relatively ineffective in striking down the more subtle, yet equally entrenched barriers that remain.

As long as workplaces remain structured around the norm of a male worker without caregiving responsibilities, and as long as women continue to do most of the caregiving work, equal employment opportunity will remain elusive. Proactive measures, such as the ones suggested in this document, are likely to be much more effective than the narrow right to sue for unlawful discrimination.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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