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Summer, 2007
Employment Law Bulletin

Caregivers and stereotyping: EEOC Issues Enforement Guidance
By Daniel J. Blake, Esq.

An employer who makes assumptions about an applicant or employee based on his or her caregiving responsibilities may well run into trouble. With increasing frequency, applicants and employees are bringing claims that adverse actions based on such assumptions are unlawful. The Massachusetts Commission Against Discrimination and Massachusetts courts have recognized that employment decisions based on stereotypical beliefs may constitute discrimination. The federal Equal Employment Opportunity Commission (“EEOC”) has recently issued enforcement guidance through a publication entitled “Unlawful Disparate Treatment of Workers With Caregiving Responsibilities” (“the Guidance”). The Guidance does not create any new protected category under federal law, but is designed to aid investigators, employees and employers in determining whether employment decisions affecting caregivers might constitute discrimination under existing protected categories such as gender, pregnancy or race.

Gender Discrimination

Gender-based stereotyping in the workplace has long been unlawful. The Guidance addresses discrimination that may occur as the result of gender-based stereotyping regarding caregiving responsibilities. According to the EEOC, evidence of such unlawful discrimination may include facts establishing that:
The employer asks female applicants, but not male applicants, whether they are married or have young children, or about their childcare or other caregiving responsibilities;

  • Decision makers or other officials of the employer make stereotypical or derogatory comments about working mothers or other female caregivers;
  • The employer treats a female caregiver less favorably than non-caregivers (including other women who are not caregivers) or men with caregiving responsibilities;
  • The employer steers or assigns female caregivers to less prestigious or lower-paid positions.

According to the Guidance, even stereotyping that is “benevolent” may violate the law. For example, an employer that reassigns a female employee to less demanding duties based solely on the employer’s perception that the reassignment will allow her to spend more time with her family violates the law where the employee’s employment is adversely affected as a result.

Pregnancy Discrimination

The Guidance makes clear that, as with other gender-based stereotypes, an employer may not base an adverse employment decision on stereotypical assumptions about the effects of pregnancy on an employee’s job performance. Whether the employer acts based on hostility or based on a belief that it is acting in the employee’s best interests does not matter in deciding whether the employer’s actions are unlawful. The Guidance also warns that employers should not make pregnancy-related inquiries. Where an employer makes such inquiries and later makes an unfavorable job decision regarding the pregnant employee, the EEOC will regard the pregnancy-related inquiries as evidence of pregnancy discrimination.

Discrimination Against Male Caregivers

The Guidance points out that although women have generally borne the brunt of gender-based stereotyping, it is also unlawful to deny male employees opportunities based on stereotypical assumptions about male caregivers. For example, it is unlawful to deny a male employee’s request for leave for childcare purposes, while granting a female employee’s leave request under similar circumstances.

Discrimination Against Women of Color

As described in the Guidance, women of color who are caregivers may be subject to race or national origin discrimination in addition to sex discrimination. For example, a pregnant Latina employee may be subject to discrimination by a supervisor who makes stereotypical assumptions about pregnancy and who is also hostile toward Latinos. Women of color may also be subjected to “intersectional discrimination,” i.e., discrimination directed toward women of a particular race or ethnicity rather than toward all women. Intersectional discrimination occurs, for example, where an African American working mother is treated less favorably than her white counterpart.

Caregivers and Disabilities

The Americans with Disabilities Act prohibits discrimination not only against a qualified employee because of his or her own disability, but also discrimination based on the employee’s relationship or association with another individual who is disabled (including, without limitation, a caregiving relationship). The Guidance makes clear that, as with other types of unlawful stereotyping, an employer may not treat an employee less favorably based on assumptions about the employee’s ability to perform job duties satisfactorily while also providing care to a disabled person.

Dan Blake is Counsel to the firm, and a member of the Employment Law Practice Group. He works primarily in the firm’s Boston office. You can contact Dan at (617) 368-2504 or [email protected]. The coordinator of the Employment Law Practice Group is Mary Jo Kennedy. You may contact Mary Jo at (413) 272-6242 or [email protected].