The Equal Employment Opportunity Commission (EEOC) recently issued guidance on so-called “best practices” for employers dealing with employees who have caregiving responsibilities.

In 2007, the EEOC issued guidance explaining the circumstances under which discrimination against workers with caregiving responsibilities might constitute discrimination based on sex, disability or other characteristics protected by federal employment discrimination laws.  The new document supplements the 2007 guidance by providing suggestions for best practices that employers may adopt to reduce the chance of EEO violations against caregivers, and “to remove barriers to equal employment opportunity.”  According to the EEOC, “[b]est practices are proactive measures that go beyond federal non-discrimination requirements.”

The EEOC noted that “[c]urrently, many workers juggle both work and caregiving responsibilities. Those responsibilities extend not only to spouses and children, but also to parents and other older family members, or relatives with disabilities.”  The EEOC also observed that “[w]hile women, particularly women of color, remain disproportionately likely to exercise primary caregiving responsibilities, men have increasingly assumed caretaking duties for children, parents and relatives with disabilities.”

The EEOC offered the following examples of “best practices” for employers in this area:

General

• Be aware of, and train managers about, the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities.

• Develop, disseminate, and enforce a strong EEO policy that clearly addresses the types of conduct that might constitute unlawful discrimination against caregivers based on characteristics protected by federal anti-discrimination laws. An effective policy that addresses caregiver protections under the law should:

  • Define relevant terms, including “caregiver” and “caregiving responsibilities.”

    • Provide an inclusive definition of “family” that extends beyond children and spouses and covers any individual for whom the applicant or employee has primary caretaking responsibilities.

  • Describe common stereotypes or biases about caregivers that may result in unlawful conduct, including:

    • assuming that female workers’ caretaking responsibilities will interfere with their ability to succeed in a fast-paced environment;

    • assuming that female workers who work part-time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees;

    • assuming that male workers do not, or should not, have significant caregiving responsibilities;

    • assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work;

    • assuming that female workers who are caregivers are less capable than other workers; and

    • assuming that pregnant workers are less reliable than other workers.

  • Provide examples of prohibited conduct related to workers’ caregiving responsibilities, such as:

    • asking female applicants and employees, but not male applicants and employees, about their child care responsibilities;

    • making stereotypical comments about pregnant workers or female caregivers;

    • treating female workers without caregiving responsibilities more favorably than female caregivers;

    • steering women with caregiving responsibilities to less prestigious or lower-paid positions;

    • treating women of color who have caregiving responsibilities differently than other workers with caregiving responsibilities due to gender, race and/or national origin-based stereotypes;

    • treating male workers with caregiving responsibilities more, or less, favorably than female workers with caregiving responsibilities;

    • denying male workers’, but not female workers’, requests for leave related to caregiving responsibilities; and

    • providing reasonable accommodations for temporary medical conditions but not for pregnancy.

  • Prohibit retaliation against individuals who report discrimination or harassment based on caregiving responsibilities or who provide information related to such complaints.

  • Identify an office or person that staff may contact if they have questions or need to file a complaint related to caregiver discrimination.

• Ensure that managers at all levels are aware of, and comply with, the organization’s work-life policies.

  • Provide incentives for managers to ensure that their employees are aware of work-life balance programs and to support employees who choose to take advantage of such opportunities.

  • Assess supervisors’ willingness to assist employees who have caregiving responsibilities on supervisors’ performance evaluations.

• Respond to complaints of caregiver discrimination efficiently and effectively. Investigate complaints promptly and thoroughly. Take corrective action and implement corrective and preventive measures as necessary to resolve the situation and prevent problems from arising in the future.

• Protect against retaliation. Provide clear and credible assurances that if employees make complaints or provide information related to complaints about unfair treatment of caregivers, the employer will protect them from retaliation. Ensure that these anti-retaliation measures are enforced.

Recruitment, Hiring, and Promotion

• Focus on the applicant’s qualifications for the job in question. Do not ask questions about the applicant’s or employee’s children, plans to start a family, pregnancy, or other caregiving-related issues during interviews or performance reviews.

• Review employment policies and practices—particularly those related to hiring, promotion, pay, benefits, attendance, and leave—to determine whether they disadvantage workers with caregiving responsibilities.

• Develop specific, job-related qualification standards for each position that reflect the duties, functions, and competencies of the position and minimize the potential for gender stereotyping and other unlawful discrimination against caregivers. Make sure these standards are consistently applied when choosing among candidates.

• Ensure that job openings, acting positions, and promotions are communicated to all eligible employees regardless of caregiving responsibilities.

• Implement recruitment practices that target individuals with caregiving responsibilities who are looking to enter or return to the workplace.

• 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.

  • When reviewing and comparing applicants’ or employees’ work histories for hiring or promotional purposes, focus on work experience and accomplishments and give the same weight to cumulative relevant experience that would be given to workers with uninterrupted service.

  • Provide the skills and training necessary to enhance the competitiveness and competency of employees while they are on leaves of absence.

• Ensure that employment decisions are well-documented and transparent (to the extent feasible).

  • To prevent misunderstandings, clearly explain the reasoning behind employment decisions to relevant parties.

  • Retain records relevant to decisions about hiring, promotion, performance, pay, leave, benefits, awards, and other employment decisions for at least the length of time required by statute.

Terms, Conditions, and Privileges of Employment

• Monitor compensation practices and performance appraisal systems for patterns of potential discrimination against caregivers. Ensure that performance appraisals are based on employees’ actual job performance and not on stereotypes about caregivers.

• Review workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure that they are necessary to business operations.

• Encourage employees to request flexible work arrangements that allow them to balance work and personal responsibilities. Work with employees to create customized flexible work arrangements that meet the specific needs of the employee and employer. Ensure that managers do not discourage employees from requesting flexible work arrangements or penalize employees who make such requests. Flexible work arrangements may include:

  • General Flexible Options:

    • Flextime Programs. Flextime policies generally permit employees to vary their work day start and stop times within a certain range, such as allowing an employee to arrive at work at any time between 8:00 and 9:30 a.m. and then work for 8 hours.

    • Flexible Week Opportunities. Flexible week opportunities may include compressed work weeks, such as a workweek consisting of four ten-hour work days.

    • Telecommuting, Work-at-Home, or Flexplace Programs. These options enable employees to work from home or alternate office locations.

  • Reduced-time options – These options permit employees to work part-time while juggling other responsibilities, such as caregiving.  Reduced-time options include:

    • Part-time work opportunities. Part-time workers should receive proportionate wages and benefits compared with full-time workers. Similarly, part-time workers should receive proportionate credit for relevant experience needed to qualify for promotions, training programs, or other employment opportunities.

    • Job sharing.   Job sharing programs permit two employees to share one full-time position. In general, employees participating in job sharing programs receive a proportionate share of the salary and benefits.

• If overtime is required, make it as family-friendly as possible. Determine whether a voluntary, rather than mandatory, overtime system would meet the needs of the organization. If not, permit employees to schedule overtime in advance so they can arrange for child care, elder care, or other caregiving responsibilities.

• Reassign job duties that employees are unable to perform because of pregnancy or other caregiving responsibilities.

• Provide reasonable personal or sick leave to allow employees to engage in caregiving even if not required to do so by the Family and Medical Leave Act of 1993 (FMLA).

  • Permit employees to use sick leave to care for family members who are ill and/or to handle medical emergencies involving family members.

  • Engage in dialogue with employees to determine the amount of leave that is appropriate and acceptable based on their workload, upcoming deadlines and personal circumstances.

  • Ensure that leave policies exist and are available to male and female employees on an equal basis. Train managers to ensure that both male and female employees are aware of leave policies and are not implicitly or explicitly discouraged from requesting leave.

  • To the extent feasible, permit employees to take leave with little notice in case of an emergency and to use leave in short increments, rather than full days or weeks. Caregiving issues may arise suddenly and unexpectedly, and may be resolved in a relatively short amount of time.

  • Establish leave donation banks that enable employees to voluntarily contribute their leave to co-workers. Some organizations have “use or lose” leave policies which prohibit employees from accruing and retaining large amounts of leave. Leave donation banks ensure that leave does not go to waste and foster an atmosphere of collegiality and cooperation.

• Post employee schedules as early as possible for positions that have changing work schedules so that employees can arrange in advance for child care or address other personal responsibilities, thereby enabling them to more readily fulfill work responsibilities.

• Promote an inclusive workplace culture. Cultivate a professional work environment that recognizes and appreciates the contributions of all staff members and demonstrates respect for employees’ personal lives and obligations. 

• Develop the potential of employees, supervisors, and executives without regard to caregiving or other personal responsibilities.

  • Provide training to all workers, including caregivers, to provide them with the information necessary to perform their jobs well.

  • Ensure that employees are given equal opportunity to participate on complex or high-profile work assignments that will enhance their skills and experience and help them ascend to upper-level positions. 

  • Provide employees with equal access to workplace networks to facilitate the development of professional relationships and the exchange of ideas and information.

• Provide support, resource, and/or referral services that offer caregiver-related information to employees. Such services may include referral services for local child care centers or assisted living facilities, adoption assistance services, parenting education classes, college financing classes, or a toll-free caregiver hotline that provides guidance and advice to employees who have work-life balance questions or concerns.

According to the EEOC, “[s]tudies have demonstrated that flexible work policies have a positive impact on employee engagement and organizational productivity and profitability. The practices outlined above have the potential to benefit all workers, regardless of caregiver-status.” Finally, the EEOC concluded that “these practices have the potential to benefit employers, enabling them to recruit and retain talented, productive, committed employees.”

This EEOC guidance does not require employers to adopt any of these “best practices.”  However, if employers do adopt some of them, they should be better able to attract employees and reduce attrition, particularly in the current economy, and should also reduce their exposure to EEOC claims.

The Arent Fox Employment Law Group regularly advises clients on compliance with EEOC matters.  If you have any questions about this Guidance, please feel free to contact us.

Michael L. Stevens
stevens.michael@arentfox.com
202.857.6382