Employers: Are You Treating Caregiving Employees Fairly?

By Coleen Penacho

A woman with two small children is rejected for her employer's executive training program. She is told that the other candidates had more managerial experience than her, but an investigation reveals that this is not true. Although other women were selected for the program, none of them had children. The only candidates who had small children were men.

Has this employer violated federal employment laws? The answer is yes. This may surprise employers because women with small children are not a protected category under federal employment laws. However, this decision, which intentionally treats a female caregiver differently than a male caregiver violates Title VII. Although women were included in the program, a woman with small children and the required experience was denied while men with small children were accepted.

While employers may be familiar with the federal laws prohibiting employment discrimination, such as Title VII of the Civil Rights Act ("Title VII") and the Americans with Disabilities Act ("ADA"), they may be surprised to learn that, in certain circumstances, employees with caregiving responsibilities are also protected by these laws. Title VII prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. The ADA, in addition to prohibiting discrimination against those with disabilities, also prohibits discrimination against an employee who has an association with a person with a disability, such as a parent, spouse or child.

An employer may violate these laws by intentionally treating a caregiving employee differently. Female caregivers often fall victim to the stereotype that they are not as committed to their jobs as male caregivers or women without caregiving responsibilities. Conversely, men are subjected to the stereotype that they are not good caregivers, and therefore, do not require family leave or similar benefits that are provided to women. Employment decisions based on gender stereotypes like these violate Title VII because the law requires that individuals be evaluated as individuals rather than as members of a group having certain average characteristics.

The following scenarios were identified in a recent Equal Employment Opportunity Commission ("EEOC") report as employment decisions that may violate Title VII or the ADA.

Treating female caregivers differently than male caregivers - If a woman is denied a promotion, or some other job opportunity because of her caregiving responsibilities, while these opportunities are provided to male caregivers, this may violate Title VII.

Stereotyping - Employers cannot treat female workers less favorably based on the assumption that their caregiving responsibilities will affect their commitment to their jobs. Such stereotypes are gender based, and employment decisions based on them may violate Title VII. For example, if women are assigned to lower priority, less prestigious assignments after they become caregivers, even though their work performance has not declined, this decision violates Title VII because it is based on the stereotype that a female caregiver will not perform her job as well as she has in the past or as well as others.

Penalizing a female employee for utilizing employer provided family care leave. If a female caregiver is denied a promotion, a raise, or is otherwise penalized after taking leave to provide care for a family member, even though her work performance has not declined, this may violate Title VII.

Benevolent stereotyping. Although an employer may not be acting out of hostility when making an employment decision affecting a caregiver, Title VII may be violated if that decision is based on a gender stereotype. For example, if an employer assigns a female caregiver assignments that will allow her to spend more time with her family even though she has not asked for such assignments and those assignments are ones that inhibit her career growth, this may violate Title VII.

Stereotyping that affects subjective assessments of work performance. When female caregivers are viewed as being less committed to their work, this bias may spill over into the employer's perception of the employee and into the employee's performance evaluations. If negative evaluations are not linked to actual performance, and an unfavorable employment decision follows, there may be a Title VII violation.

Acting on stereotypes of pregnant workers. Like caregivers, pregnant workers are often subjected to the stereotype that they are not committed to their jobs. Employment decisions based on this stereotype violate Title VII. Therefore, employers should avoid pregnancy related inquiries. Such inquiries are viewed as evidence of discrimination if an employer later makes an unfavorable job decision affecting the pregnant worker.

Discriminating against male caregivers. While it is lawful for employers to provide pregnancy or childbirth related leave only to women, any leave that is provided for child care or other caregiving purposes must be offered to both men and women. Similarly, flexible schedules provided for caregiving purposes must be provided to both men and women.

Stereotyping based on association with a disabled person. If an employer acts on stereotypical beliefs about an employee's ability to perform his job because of his responsibility for caring for an individual with a disability, the employer is in violation of the ADA. For example, if an employer decides not to hire or promote the best candidate because the candidate has to care for a disabled individual, this violates the ADA.

Hostile work environment. Employers may be liable if caregiving employees are subjected to harassment because of sex, association with a person with a disability, or another protected characteristic. Employers should take steps to prevent harassment directed at caregivers or pregnant workers and should correct such conduct if it does occur. The employer should have a harassment complaint process to deal with such situations and should investigate and follow up on any complaints received.

The common thread running throughout these scenarios is that employers must make employment decisions based on actual work performance, and avoid stereotypes that prevent them from evaluating employees as individuals. Employers who practice this throughout their organizations should not run afoul of these laws.

Coleen Penacho is an attorney in the Health Care Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A. Coleen can be reached at (603) 628-1246 or coleen.penacho@mclane.com. The McLane Law Firm is the largest law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmouth.