Navigating the Tricky Waters of Caregiver Discrimination
By Tiffanie Benfer
In 2007, the Equal Employment Opportunity Commission (“EEOC”) filed a record number of lawsuits over caregiver bias in the work place. See http://www.eeoc.gov/stats/pregnanc.html The EEOC also obtained 30 million dollars in monetary benefits, which is a significant increase from the prior year’s monetary recovery of 10.4 million dollars. (This monetary recovery also includes pregnancy discrimination claims.) (Note the 2008 EEOC statistics are not yet available.)
Caregiver discrimination claims have been successfully litigated in the recent years under the “sex-plus” theory. This theory prohibits employers from treating employees differently than other workers on the basis of their sex “plus” a facially neutral characteristic such as having young children.
One way employees have successfully challenged “sex-plus” discrimination is through the disparate impact theory. For example: A female asserted that her employer’s sick leave policy, which provided that sick leave could only be used when the employee was sick had a disparate impact on female employees because female employees were more likely to stay home with a sick child. Consequently, the policy forced women to resign more frequently than their male counterparts because of their caregiver role.
In another instance, a company’s vice-president repeatedly asked the plaintiff how her husband was managing because she was not home to cook for him and whether she could effectively do her job after she gave birth to her second child. The vice-president had the plaintiff review a company employment profile excluding married women and women with children, and then proceeded to tell her the “profile was nothing against [her], but that he preferred unmarried, childless women because they could give 150% of the job.” The court held these inquires were evidence of hostility towards working mothers.
Many employers have set forth workplace objectives based on men and their traditional immunity from family caregiving. This results in discrimination against women. In order to establish gender equality in the work place, employers need to establish workplace objectives that take into account family caregiving.
Employers should examine their company policies and consider whether they appear to be gender neutral or whether the policies actually have a disparate impact on employees with childbearing responsibilities.
This is a challenging task for employers as they are responsible for making sure the work gets done. It will require an employer at times to think outside the box in order to accomplish both objectives.
http://www.nytimes.com/2007/07/29/magazine/29discrimination-t.html?_r=1&pagewanted=2