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EEOC Issues Guidance Targeting Workplace Bias Against Pregnant Workers and Caregivers
Labor and Employment Update
May 25, 2007
Responding to a record number of pregnancy discrimination charges, as well as an increased focus on what is popularly termed “family responsibility discrimination,” the Equal Employment Opportunity Commission (EEOC) issued a new and potentially significant Employment Guidance on May 23, 2007, entitled “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.”
In short, the 33-page set of guidelines, while not creating a new category of protected worker under Title VII of the Civil Rights Act of 1964, nevertheless:
- Signals the agency’s clear intent to aggressively target employment bias against pregnant workers and “caregivers,” particularly working parents;
- Warns that even unintentional discrimination against pregnant employees or caregivers, resulting from “unconscious” or “benevolent” gender stereotyping, may be unlawful;
- Advises that biased statements and behavior by supervisors may be sufficient to pursue a charge of discrimination, even in the absence of evidence that non-caregivers were treated more favorably; and
- Admonishes employers that their obligations toward employees may extend beyond Title VII, for example, to an employee/caretaker of a disabled spouse who may be protected against an adverse employment action under the Americans with Disabilities Act (ADA) or to an employee covered by the Family and Medical Leave Act (FMLA).
The EEOC asserts that increased emphasis on protecting pregnant workers and caregivers is warranted by the changing demographics of the American workforce. For instance, women now comprise nearly half of the U.S. labor force, although they remain “most families’ primary caregivers.” In fact, according to the Commission, there are almost twice as many mothers of young children working today as there were three decades ago.
The EEOC offers guidelines on unlawful employment bias against pregnant workers and caregivers. For example:
- In order to avoid the creation of a “maternal wall,” employers may not treat working mothers differently from working fathers or childless women.
- Employers should avoid asking applicants and employees any pregnancy-related questions as the EEOC “will generally regard a pregnancy-related inquiry as evidence of pregnancy discrimination where the employer subsequently makes an unfavorable job decision affecting a pregnant worker.”
- Except for pregnancy-related matters, male employees must be treated the same as their female counterparts with respect to parenting and other caregiver leaves, as well as other terms and conditions of their employment.
- Based on the ADA’s prohibition of discrimination against an employee who has a relationship with a disabled child, spouse or parent, an employer should avoid making adverse employment decisions based on stereotypical assumptions concerning the reliability of an employee who is a caregiver.
- An employer may be liable for harassment where offensive comments (or other harassment) aimed at a pregnant worker, or at an employee associated with a disabled person, are so severe or pervasive that they create a hostile work environment.
- An employer may not retaliate against a caregiver or pregnant employee for opposing unlawful discrimination. The EEOC emphasizes that caregivers may be “particularly vulnerable to unlawful retaliation because of the challenges they face in balancing work and family responsibilities.”
The Bottom Line
As with other forms of discrimination, an employer can best minimize its risk of incurring liability for discrimination against pregnant workers and caregivers by ensuring that its employment decisions are based on objective criteria, free of stereotypical assumptions; its supervisors are well trained; and its policies are consistently enforced. With such practices in place, an employer may take appropriate steps to correct disciplinary or performance problems, even those involving a pregnant worker or caregiver, without running afoul of the anti-discrimination laws.