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EEOC Issues Guidance on "Caregiver Bias"

Volume 6, Issue 5
June 19, 2007

The Equal Employment Opportunity Commission published guidance to employers and EEOC investigators outlining the circumstances under which discrimination against persons with caregiving responsibilities constitutes discrimination in violation of Title VII of the Civil Rights Act (sex, race, color, religion, and/or national origin) or the Americans With Disabilities Act. On May 23, 2007, EEOC published its "Unlawful Disparate Treatment of Workers With Caregiving Responsibilities," which can be found on its website (www.eeoc.gov).

The EEOC stressed that it was not creating a new protected classification, but simply a manner of analyzing evidence in the face of a charge filed by a person having "caregiving responsibilities," such as women with children or of child-bearing age, where couples split childcare responsibilities, or men or women who care for spouses or relatives, including adult children. There is also considerable focus upon pregnancy discrimination as well as discrimination against minorities who, the Commission notes, disproportionately occupy low-paying jobs with the least control over their working conditions and thus are more affected by conflicts between work and caregiving responsibilities. The EEOC notes with favor the recommendation of the federal Glass Ceiling Commission that organizations "adopt policies that allow workers to balance work and family responsibilities throughout their careers."

Much of the Guidance deals with the unlawfulness of employment decisions based upon inappropriate perceptions of employers regarding caregivers, including in large part stereotyped views as to women with children or who are pregnant or of child-bearing age. This includes hiring or promotional decisions or performance evaluations based upon stereotyped views of whether a woman is suitable for a job or as to her performance because she has children, wants a family, or is of child-bearing age and believed to want to have children in the future.

Under such circumstances, the EEOC will focus upon the evidence of the application of biased views or perceptions, such as managers' comments about women or caregivers, generally or as to a specific person or position, discussions about the reliability of working mothers, or questions during job interviews regarding child care or desire for children. Of concern is the application of the so-called "mixed motive" theory where there is evidence of such biased views as "a" motivating factor even where there were also permissible reasons for a decision; in such cases, the burden switches to the employer to prove it would have made the same decision anyway. Records of consistent application of polices and procedures, or of certain qualifications for selection, will be most important.

It is for these reasons many commentators believe this new Guidance will result in an increase in charges by caregivers or findings of probable cause by caregivers.

See the EEOC's Guidance at: http://www.eeoc.gov/policy/docs/caregiving.html

A "Questions and Answers" publication about the EEOC's Guidance can be found at: http://www.eeoc.gov/policy/docs/qanda_caregiving.html

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