Thursday, May 24, 2007

Is Failing to Promote a Work/Life Balance Actionable Discrimination?

If you scour Federal and Ohio anti-discrimination laws, you will not find “caregiving” as a protected characteristic. Yet, according to the EEOC’s May 23, 2007, Enforcement Guidance, Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, employers that disparately treat employees who have caregiving responsibilities may be guilty of actionable discrimination. 

According to the EEOC, the Guidance is intended to address the connection between caregiving roles, such as motherhood, and employment discrimination. It does so, not by creating “a new protected category,” but by illustrating “circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.” The EEOC’s intention is to clarify “how the federal EEO laws apply to employees who struggle to balance work and family,” says EEOC Vice Chair Leslie E. Silverman. This form of discrimination is being referred to as “family responsibility discrimination” (or “FRD”).

As examples of family responsibility discrimination, the EEOC provides a 27-page laundry list that should be HR 101 for all but the most myopic of employers:
  • Asking female applicants, but not male applicants, if they have children (sex discrimination); 
  • Making derogatory comments about a female employee after she becomes pregnant (sex discrimination); 
  • Quizzing a female job applicant on how she would handle her job and her family at the same time (sex discrimination); 
  • Forcing pregnant employees to take unpaid leaves of absence (sex/pregnancy discrimination); 
  • Refusing to permit a male employee to take permissible paternity leave, or denying a request for part-time status to enable one’s wife to return to work full-time, because it is not “masculine” (sex discrimination); 
  • Permitting a white employee time off to care for an ill child, but not a black employee (race discrimination); 
  • Failing to hire an employee who has to care for a disabled child (disability discrimination); 
  • Repeated negative comments about breastfeeding, motherhood, or pregnancy (sexual harassment).
As a relatively new dad, I can personally report that caregiving is largely the mom’s role, (although we enlightened 21st century dads try to do our fair share). Be that as it may, companies that are not flexible in accounting for that caregiving role of their female employees are losing and will continue to lose good employees. For companies to retain those employees, they will have to become flexible so that working moms do not have an incentive to leave the workforce. One would think that businesses would self-correct to ensure against losing good employees. The fact that the EEOC was compelled to publish this Guidance suggests that the job market is doing the exact opposite to the detriment of many well qualified employees.

This Guidance will certainly spur more discrimination charges and lawsuits based on these issues, as they are now front and center for the plaintiffs’ bar. To avoid being subjected to such claims and to be able to effectively defend them, employers will have to adopt more flexible policies and a more open mind on the role of caregivers in the workplace.