- M. Lee Smith Publishers

<font size="1">Excerpted from Oklahoma Employment Law Letter and written by an attorney at the law firm of Doerner, Saunders, Daniel & Anderson, LLP</font><br /><br />Chances are, many (if not most) of your employees are "working caregivers" -- that is, they work and care for minor children or grandchildren or a sick spouse, parent, or otherfamily member.<br /><br />Working parents are a staple of today's workforce. Studies show that people between the ages of 30 and 60 will increasingly be called on to care for an elderly parent. And no one doubts the prevalence of double-income families in which both the mother and father work full-time.<br /><br />If that's an accurate description of your workforce, ensuring equal treatment to all caregivers is essential. In a widely diversified workplace that includes workers of both genders and a wide range of ages, it's imperative to be fair and unbiased when employees request paid or unpaid time off to fulfill their caregiving responsibilities.<br /><br />To steer you in the right direction down the path of equal treatment, the Equal Employment Opportunity Commission (EEOC) has announced new guidance on how treating employees differently when it comes to caring for children, parents, or other family members may violate Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act (ADA).<br /><br />Why were guidelines necessary?<br /><br />The EEOC's guidance does just what its title suggests: It attempts to ensure that people are given equal employment opportunities regardless of their gender, age, nationality, or race. Similarly, the ADA attempts to ensure that people of varying abilities and circumstance are given equal opportunities.<br /><br />Federal laws, including the Family and Medical Leave Act (FMLA), mandate that workers be given a certain number of days off -- paid or unpaid, depending on company policy -- to care for identified members of their family. It's illegal to disallow or punish employees for taking that type of leave.<br /><br />Because it's responsible for ensuring that discriminatory practices don't occur, the EEOC conducted several studies to reveal how the effect of employment decisions on employees caring for others comes into play.<br /><br />Here's a quick example to get you up to speed: Imagine an employer with two employees -- one a working father and one a working mother. Both employees take leave to care for a sick child at various times. The employer doesn't base any employment decisions on the working mother's absences or evaluate her performance poorly because she's a mother, after all, and she's entitled to take leave under both company policy and the FMLA. But the company refuses to positively evaluate or promote the working father who has taken the same leave for the same reasons.<br /><br />The employer didn't intentionally target the working father because of his gender, but it may have allowed subconscious stereotypes about who should be a caregiver and who is entitled to leave to care for sick children influence its employment decisions. Under the law as it already exists and is now more clearly described in the EEOC's new guidance, this scenario potentially violates the working father's Title VII rights.<br /><strong><br />Stereotyping is the enemy</strong><br /><br />The EEOC's studies demonstrated that categories of people may be discriminated against when an employer uses stereotypes about them in conjunction with ideas about caregiving responsibilities to make employment decisions.<br /><br />About this issue, the late Justice William Rehnquist of the U.S. Supreme Court observed, "[T]he fault line between work and family is precisely where sex-based overgeneralization has been and remains strongest." Employment decisions based on stereotyping employees and their caregiving responsibilities may violate workers' federal rights.<br /><br />The EEOC found that everyone loses when employers practice stereotype-based discrimination. For example, although hourly workers have traditionally been thought of as expendable, studies show that a high turnover rate, for whatever reason, is bad for workers and employers.<br /><br />The bottom line for employers is, time spent training new employees is unprofitable, especially when good business practices demonstrate that equal treatment is required in today's workplace. In other words, it pays to be cautious and comply with good business practices that will cut down on turnover -- and more important, on lawsuits.<br /><br />The EEOC guidance provides this illustrative example:<br /><br /> Margaret, an African[-]American employee in the city's Parks and Recreation Department, files an EEOC charge alleging that she was denied the opportunity to use compensatory time because of her race.<br /><br /> She asked her supervisor, Sarah, for the opportunity to use compensatory time so she could occasionally be absent during regular work hours to address personal responsibilities, such as caring for her children when she does not have a sitter.<br /><br /> Sarah rejected the request, explaining that Margaret's position has set hours and any absences must be under the official leave policy. The investigation reveals that while the city does not have an official compensatory time policy, several [w]hite employees in Margaret's position have been allowed to use compensatory time for childcare purposes.<br /><br /> When asked about this discrepancy, Sarah merely responds that those employees' situations were "different." In addition, the investigation reveals that while [w]hite employees have been allowed to use compensatory time, no African Americans have been allowed to do so.<br /><br />Under the circumstances, the investigator determines that Margaret was unlawfully denied the opportunity to use compensatory time based on her race.<br /><strong><br />Bottom line</strong><br /><br />What's the bottom line for you as an employer? Well, for starters, always make sure your company has firm written policies and procedures that comply with federal and state requirements governing mandated leave.<br /><br />Second, make sure any leave your employees take is properly documented within and accruing against any federal- or state-allowed leave and consistent with your company's policy on leave. Finally, have a good understanding of the new EEOC guidance. To review the agency's guidelines, go to www.eeoc.gov/policy/docs/caregiving.html.<br /><br /><font size="1">McLaine DeWitt Herndon may be reached at mherndon@dsda.com.<br /><br />Copyright 2007 M. Lee Smith Publishers LLC. This article is an excerpt from OKLAHOMA EMPLOYMENT LAW LETTER. OKLAHOMA EMPLOYMENT LAW LETTER does not attempt to offer solutions to any individual problems or to provide legal advice to its readers. Rather, the OKLAHOMA EMPLOYMENT LAW LETTER seeks to provide information about current developments in Oklahoma employment law. Questions about individual problems or requests for legal advice should be addressed to an employment law attorney of your choice.</font>