In April 2009, the Equal Employment Opportunity Commission ("EEOC") published its Best Practices to assist employers in complying with federal anti-discrimination laws as they relate to workers with caregiving responsibilities. The Best Practices are not binding on employers and do not make caregivers a newly protected category under federal law. Rather, these are suggestions from the EEOC to encourage employers to consider "the ways in which family-friendly workplace policies can improve workers' ability to balance caregiving responsibilities with work." The EEOC asserts that these recommendations may also benefit an employers' workers, customer-base and bottom line by improving employee retention, increasing profitability and reducing costs associated with high employee turnover.
Recommendations are made in the following three areas: (1) general policies and decision-making; (2) recruitment, hiring and promotion; and (3) terms, conditions and privileges of employment.
For example, employers should train managers about the legal issues that may arise as a result of employment decisions made concerning workers with caregiving responsibilities, and hold managers accountable for following the company's work-life policies. All employers should develop and distribute an EEO policy that includes caregiver discrimination as a basis for potential unlawful discrimination. The policy should include examples and descriptions of common stereotypes or prohibited conduct related to workers' caregiving responsibilities. Conduct that may constitute unlawful discrimination could include asking only female applicants about their child-care responsibilities or making hiring or promotion decisions based on assumptions related to female employees' ability to work late at night or on weekends. The policy should include an anti-retaliation provision and the name of a person to contact should there be any questions or concerns. Employers are advised to respond promptly to any complaint involving caregiver claims, as with all employee complaints.
When hiring, the EEOC recommends that employers develop "specific, job-related qualification standards" to ensure that hiring decisions are based on an applicant's qualifications, rather than on his or her personal caregiving-related issues. All job openings and promotion opportunities should be communicated to all employees, regardless of caregiving responsibilities. The EEOC also advises employers to examine hiring policies in order to identify and remove any barriers to re-entry for those applicants who have gaps in employment due to their caregiving responsibilities.
Combined with the newly enacted Lilly Ledbetter Fair Pay Act (read more about this act at instanthrsolutions.com), these Best Practices provide even more of an incentive for employers to monitor their compensation practices and performance appraisal systems to ensure that decisions are made based on an employee's actual job performance and not based on unlawful stereotypes. The EEOC advocates the adoption of flexible workplace rules in order to accommodate employees with caregiving responsibilities, i.e., providing reasonable sick time or leave, beyond what the law requires. Flexible hours, overtime policies, and modified job duties are also advised in order to promote a workplace culture that recognizes the diversity of its employees and demonstrate a respect for employees' personal lives and outside obligations.
While these Best Practices are not binding on employers, they do serve as notice that the EEOC views discrimination against caregivers as an issue and is more likely to pursue such claims in the future. As a result, now is the time for employers to implement these Best Practices as a proactive mechanism to ward off any investigation into such claims. Employers should take the time to conduct a thorough review of their policies and procedures, training programs, and hiring and promotion activity to ensure they are fully protected against potential caregiver discrimination claims.
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