WORKPLACE LAW - Discrimination Against
Employees With Caregiving Responsibilities

Question:

I am an administrative assistant. Since I returned from maternity leave six months ago, I have missed several days of work because I can’t find reliable childcare. I have used all of my sick time and vacation for these absences. Yesterday, I got a written warning about my absences, and my employer says my job skills are not as good as before I went out on leave. I feel this warning is unfair because I cannot always find a sitter for my baby. Does the law protect me?

Answer:

The law may provide some protection under these circumstances. The Equal Employment Opportunity Commission recently issued guidance to discuss how federal equal employment laws apply to employees who must balance work and family. The guidance notes that changing workplace demographics, including women’s increased participation in the labor force, have created the potential for greater discrimination against working parents and others with caregiving responsibilities, such as eldercare.

The EEOC provides examples of when discrimination against a working parent or other caregiver may constitute discrimination under Title VII and the Americans with Disabilities Act of 1990 (ADA). Although this new guidance does not create a new “protected category,” it illustrates circumstances in which stereotyping or other forms of disparate treatment of employees may violate Title VII or the prohibition under the ADA against discrimination based on a worker's association with a disabled individual.

Examples of potentially discriminatory treatment of caregivers include the following:

  • Treating male caregivers more favorably than female caregivers (or vice versa). This could include asking female applicants, but not male applicants, whether they have young children or other caregiving responsibilities, or treating female workers without children or other caregiving responsibilities more favorably than female caregivers.
  • Sex-based stereotyping based on “ traditional gender roles” and the division of domestic and workplace responsibilities that lead some employers to assume that childcare responsibilities will make female employees less dependable than male employees. Examples include reassigning a woman to less desirable projects based on the assumption that, as a caregiver, she will be less committed to her job.
  • Discriminating against working fathers. For example, employers who deny male employees’ requests for leave for childcare purposes may be violating the law if the decision is based on gender, and the evidence shows that the employer grants female employees’ similar requests for leave.
  • Discriminating against women of color. For example, a minority working mother might be subjected to discrimination by her supervisor based on his stereotypical notions about working mothers, as well as his hostility toward her race generally.
  • Stereotyping based on an employee’s association with a disabled individual, such as refusing to hire a worker who is a single parent of a disabled child based on the assumption that caregiving responsibilities will make the worker unreliable.
  • Allowing a hostile work environment by subjecting workers with caregiving responsibilities to severe and pervasive offensive comments or other harassment because of race, sex (including pregnancy), association with an individual with a disability, or another protected characteristic.
  • Retaliating against employees who oppose unlawful discrimination, such as by complaining to their employers about gender stereotyping of working mothers, or filing a charge with the EEOC or Department of Fair Employment and Housing. Because discrimination against caregivers may violate federal and state law, retaliation against workers who complain about such discrimination also may violate the law.

However, the guidance explains that employment decisions that are based on an employee’s actual work performance, rather than assumptions or stereotypes, do not generally violate Title VII or California law, even if an employee’s unsatisfactory work performance is attributable to caregiving responsibilities. Therefore, your employer may have legitimate reasons for giving you the written warning based on your attendance and work performance.
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