“There are only four kinds of people in the world—those who have been caregivers, those who are currently caregivers, those who will be caregivers and those who will need caregivers.” True to former First Lady Rosalynn Carter’s words, few individuals will go through their working lives and never be faced with the challenge of balancing work and caregiving responsibilities. Whether it’s a new child, a school-age child home sick from school, an elderly parent, or a disabled friend, caregiving responsibilities are a part of life and have a tremendous impact and cost on the workplace.
The National Family Caregivers Association has compiled a series of statistics on family caregiving, which reveal the impact of caregiving responsibilities on individuals, employers, and our economy. Nearly every employer must address the impact of caregiving responsibilities at some time, as 59 percent of family caregivers who care for someone over the age of 18 either work or have worked while providing care, with 62 percent needing some adjustments to their work life, from reporting late to giving up work entirely. U.S. businesses lose as much as $34 billion each year due to employees’ need to care for loved ones over the age of 50.
Caregiving responsibilities disproportionately impact women, which creates the potential for discrimination claims based on gender stereotyping. While more than 50 million people provide care for a chronically ill, disabled or aged family member or friend during any given year, approximately 60 percent of family caregivers are women, with the “typical” family caregiver being a 46-year-old, employed woman. This statistic does not even account for caregiving responsibilities of young children, which also fall disproportionately to women.
Despite the effect of caregiving responsibilities on the workforce, 37 percent of human resource directors do not feel that their organization makes a real and ongoing effort to inform employees of available assistance for managing family responsibilities.
On April 22, the Equal Employment Opportunity Commission (EEOC) released new guidance to employers of “best practices” for workers with caregiving responsibilities to address this gap. While “caregivers” are not by themselves a protected class, individuals with caregiving responsibilities may be protected by several federal laws. For example, assumptions that a woman will perform a job less well due to her family or caregiving obligations is a form of sex-stereotyping and adverse job actions taken on that basis constitute sex discrimination under Title VII.
The Family Medical Leave Act (FMLA) protects employees who need time off work to care for a family member with a serious health condition. The Americans with Disabilities Act (ADA) prohibits discrimination against an employee for having a relationship or association with someone with a qualified disability. The Employee Retirement Income Security Act (ERISA) makes it illegal for an employer to discharge an individual for the purpose of interfering with employee benefits protected by ERISA. The EEOC’s guidance is aimed at reducing EEO violations against caregivers and to remove barriers to equal employment opportunity.
While some of these suggested proactive measures go beyond federal statutory requirements, they are good practices to implement to improve morale. The EEOC’s examples of best practices are broken down into three categories: (1) General, (2) Recruitment, Hiring, and Promotion, and (3) Terms, Conditions, and Privileges of Employment.
General
The general practices are familiar territory for any experienced HR manager but with the focus on caregivers. The advice from the EEOC includes such basics as training managers on the legal obligations that may impact workers with caregiving responsibilities; developing, disseminating, and enforcing a strong EEO policy that clearly addresses conduct that might constitute unlawful discrimination against caregivers; and ensuring that managers at all levels are aware of, and comply with, the organization’s work-life policies.
The EEOC noted that there is evidence that top executives tend to support work-life balance policies but middle and front line managers are likely to be more resistant to such policies. Accordingly, organizations must educate managers at all levels to support employees who take advantage of available programs. As is the case with any complaint, it is always important to respond to complaints of caregiver discrimination promptly and adequately and protect against retaliation.
Recruitment, Hiring, and Promotion
The EEOC’s guidance on recruiting, hiring, and promoting is similar to the guidance under the ADA or Title VII. The idea is to stay focused on the individual’s qualifications and, in the case of caregivers, not consider family obligations or caregiving responsibilities unless there is an impact on the individual’s ability to perform the job. Employment practices and policies should not disadvantage caregivers. For example, if the job can be performed from home, part-time, or during different hours than standard business hours, the employer should not consider whether someone is unable to work full time, on site, and during business hours as these are not requirements of the position.
An employer cannot assume that an employee with caregiving responsibilities will not be interested in a certain position. All eligible employees, regardless of caregiving responsibilities, should be notified about job openings, acting positions, and promotions. This exact situation was addressed in Lust v. Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004), in which the court found illegal sex-stereotyping in violation of Title VII because a supervisor admitted that he did not recommend the plaintiff (a woman) for a promotion because she had children and he did not think she would want to relocate her family, even though she never indicated that she would not move for a promotion and had repeatedly expressed her desire to advance within the company.
A major barrier for caregivers is returning to the workforce after an extended absence to attend to caregiving responsibilities. The EEOC encourages employers to implement recruiting practices that target individuals with caregiving responsibilities who are looking to enter or return to the workplace and to identify and remove barriers to re-entry for individuals who have taken leaves of absence from the workforce due to caregiving responsibilities or other personal reasons. These workers can be a tremendous source of talent and experience for employers.
Terms, Conditions, and Privileges of Employment
The EEOC cautions employers to monitor compensation practices and performance appraisal systems for patterns of potential discrimination against caregivers. Employers must take care that performance appraisals are based on actual job performance and not on stereotypes about caregivers. For example, on April 29, 2009, a week after the EEOC published its best practices, the Ninth Circuit issued an opinion in Gerving v. Opbiz, LLC, reinstating the plaintiff’s claims of gender discrimination and retaliation. Plaintiff, a new stepmother of three young children, began receiving poor performance reviews only after she became a stepmother and was told by her supervisor that working mothers could not perform as well as men or women without children, that mothers should stay home, and that she would have to choose between being a mother and a sales manager. The plaintiff was also reprimanded for making telephone calls to her children and for time away from work, while a male coworker with children was not. The plaintiff’s employment was terminated after she complained. While there was some evidence that the plaintiff was not performing satisfactorily due to specific events, her supervisor began discussing terminating her employment before these events occurred.
The EEOC recommends reviewing workplace policies that limit employee flexibility, such as fixed hours and mandatory overtime, to ensure that they are necessary to business operations. Taking it a step further, the EEOC encourages employers to proactively create flexible work arrangements that allow employees to balance work and personal responsibilities such as flextime programs, flexible week opportunities (e.g., working four ten-hour days), telecommuting or working from alternative office locations, and reduced-time options, including part-time work opportunities and job sharing. Many employers have already switched to this model after gas prices spiked and/or the economy demanded cut-backs. However, one trap to avoid is to question the reason an employee seeks flexibility instead of approaching the issue from the perspective of what do operations permit. Employers must also ensure that employees are given equal opportunity to participate in complex or high-profile work assignments and engage in mentoring, training, and networking activities even if they are on a flexible work program or a reduced scheduled.
Other best practices include providing reasonable personal or sick leave to allow employees to engage in caregiving tasks that may not be covered by FMLA or the ADA. Be clear in policies that sick time may be used to care for others.
The EEOC’s full “Employer Best Practices for Workers with Caregiving Responsibilities” is available on the EEOC’s website at www.eeoc.gov/policy/docs/caregiver-best-practices.html.
(Amy Angel is an attorney with Barran Liebman LLP and represents management in employment and labor law matters, specializing in employment litigation and advising employers on all employment law issues.)
