U.S. Employers Now Need to Worry About "Caregiver Discrimination"?

The U.S. Equal Employment Opportunity Commission (EEOC) which enforces various federal non-discrimination laws met in April 2009 to present Employer Best Practices for Workers with Caregiving Responsibilities. This could appear curious, given that none of the laws within the EEOC’s jurisdiction prohibits discrimination against caregivers. Rather, as you probably know, Title VII prohibits discrimination on the basis of race, color, religion, national origin, sex and (as of November 2009), genetic information. Other laws protect pregnancy and pregnancy-related medical conditions, age and disability. While "caregiving responsibilities" are not on this list, employers need to be aware of the increasing judicial tendency to extend discrimination protections . . . and the EEOC’s parallel tendency to stretch them even further. Indeed, the EEOC’s own document on caregiver best practices acknowledges that "Best practices are proactive measures that go beyond federal non-discrimination requirements." (emphasis added) It is thus prudent to ensure that decisions regarding your employees’ employment are only made for business reasons, without other considerations clouding the process.

The March 2009 case of Chadwick v. Wellpoint, Inc., decided by the First Circuit Court of Appeals (which covers Main, Vermont, Massachusetts, Rhode Island and Puerto Rico) highlights the necessity to exclude non-work-related considerations from employment decisions. In that case, the court determined that Laurie Chadwick had presented sufficient evidence to show that she was denied a promotion because she had four children (including a set of triplets) and was going to school, rather for any reason related to her performance. Indeed, Chadwick was told that her failure to attain the promotion was "nothing you did or did not do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now." In this case, however, Chadwick received superior reviews and had been employed longer than the other promotion candidate—another woman—who ultimately received the job. The court’s decision to reinstate Chadwick’s sex discrimination claim is an important lesson for employers.

While the usual plaintiff alleging sex discrimination would point to the fact that a man received the job, this case was allowed to proceed on what is called a "sex plus" theory. Under that rubric, gender PLUS another factor (here, child care responsibilities and an erroneous presumption that such will make her perform her job less well) is alleged to have improperly motivated the decision. Chadwick argued that a man with triplets would not be presumed to have childcare responsibilities that would impact his job. Similarly, she claimed that a woman without childcare responsibilities (such as the successful promotion candidate) was erroneously presumed to be better able to perform the job, despite the fact that Chadwick had routinely demonstrated the contrary. The court accepted these as valid arguments demonstrating potential sex plus discrimination and permitted Chadwick to pursue her discrimination claim.

The point here is that having triplets and going to school for some employees (male or female) may be too much of a burden on an employee’s time and attention to take on added responsibilities of a promotion. However, just as an employer cannot stereotype the Asian computer programmer applicant and presume that he will do a better job than the white applicant because of the stereotypical presumption that Asian’s are better with computers, employers cannot presume that their employee is unable to handle triplets and a job. Rather, in both cases the employer needs to eschew stereotypes and evaluate the skills, abilities and characteristics of THIS computer programmer and THIS employee with triplets to determine who is the best candidate for the job.

The EEOC was thus providing guidance to employers for avoiding sex-plus and other forms of discrimination claims that have been recognized in our ever-changing judicial landscape. Instead of considering the changes overwhelming, however, and being concerned about what change will be instituted next, employers would be well served by simply keeping their employment decisions business related, and by taking the time to gather data about their specific employees and applicants before making final decisions.