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EEOC OFFERS NEW GUIDANCE ON
FAMILY RESPONSIBILITY DISCRIMINATION

The topic of “family responsibility discrimination” has received increasing attention over the past several years.  ABC news recently reported a 400 percent increase in family responsibility discrimination lawsuits nationwide.  While many of these cases involve requests for family leave under the federal Family and Medical Leave Act (“FMLA”) or the California Family Rights Act (“CFRA”), others allege that working mothers and caregivers are discriminated against in the workplace on the basis of their gender, race, pregnancy or disability.  For example, a California jury recently awarded $2 million to a female police officer passed over for a promotion due to childcare responsibilities.  Glenn-Davis v. City of Oakland, No. 3:02-cv-02257-SI (N.D. Ca. 2006).

On May 23rd, the Equal Employment Opportunity Commission (“EEOC”) issued enforcement guidelines designed to help employers understand and combat family responsibility discrimination.  The EEOC guidelines, entitled: “Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities,” illustrate the circumstances under which discrimination against a worker with family responsibilities may constitute unlawful disparate treatment. 

Examples include:

Disparate treatment of female caregivers as compared with male caregivers.

•     Gender stereotyping of working women.

•     Pregnancy discrimination.

•     Discrimination against male caregivers.

•     Discrimination against women of color.

•     Unlawful caregiver stereotyping under the Americans with Disabilities Act.

The EEOC is careful to acknowledge that not every employment decision with an adverse impact on a caregiver violates anti-discrimination laws.  The EEOC does, however, “strongly encourage employers to adopt best practices to make it easier for all workers, whether male or female, to balance work and personal responsibilities.”  In addition to legal concerns, the EEOC cites “substantial evidence” that “workplace flexibility enhances employee satisfaction and job performance,” and that employers who adopt such flexible workplace policies can save “millions of dollars in retention costs.”

The new EEOC enforcement guidelines and other recent EEOC press releases are available online at http://www.eeoc.gov/press.