On February 15, the EEOC held a hearing where
speakers addressed the issues of pregnancy and caregiver discrimination. It was
the Commission's first hearing of the year. EEOC Chair Berrien stated that
discrimination based on pregnancy persists in the 21st century
workplace and that the EEOC is committed to insure that applicants and
employees are not subjected to unlawful discrimination based on pregnancy or
because of their efforts to balance work and family responsibilities.
Regarding pregnancy discrimination, the EEOC's General Counsel stated that many
employers do not have policies against pregnancy discrimination. and noted that
there is more direct evidence in this area than any other area. It was
noted that more pregnancy related conditions will be covered under the
Americans with Disabilities Act Amendment Act, and more people will seek
and expect accommodation. The EEOC is likely to challenge
policies which exclude pregnant women such as light duty under the
disparate impact theory.
Caregiver discrimination is encompassed in the EEOC's concept of family
responsibilities discrimination. The focus in caregiver discrimination is
whether caregivers are treated differently than employees without children or
ill family members. According to the EEOC, caregivers are comprised of
pregnant women and men and women who care for spouses, children, parents, or
other individuals or friends.
Caregiver discrimination cases can involve disparate treatment of caregivers
based on gender, race or national origin under Title VII. Under the ADA,
the EEOC views discrimination as encompassing situations where a worker is
treated less favorably because of caregiver responsibilities for an individual
with a disability
One panel at the hearing addressed the topic: "The Way Forward:
Implications for the Future." Noticeably absent from the panel
was any representative of employers to give that perspective or to
discuss challenges faced by employers.
There is no federal statute that recognizes caregivers as a protected class.
The EEOC hearing and the speakers' focus on the need for protection of
caregivers raise the prospect that the EEOC will adopt broad interpretations of
Title VII and the ADAAA, emphasizing disparate treatment, to expand
protection for individuals in this group.
Employers need to be aware of the emphasis placed on caregiver and pregnancy
discrimination. A review of policies and procedures is a must. If
there is no inclusion of pregnancy discrimination under
prohibited practices, it should be added. Policies which may be
scrutinized include light duty assignment, attendance, personal time off,
and other policies that impact the circumstances where an employee may request
time off during the day for purposes of caregiving. Employers need to see
if they apply these policies equally to all employees, or if they make
exceptions. If exceptions are made, employers need to determine why and
the basis for the exceptions.
Whether or not the EEOC's expansive interpretation of caregiver protection
will ultimately be adopted by courts remains an open question.
Nevertheless, employers need to be aware that these two areas are now
on the EEOC's radar. Between the FMLA obligations and the EEOC's
expansive interpretation of its concept of family responsibilities
discrimination, employers must be aware of this evolving area.
Consistency in the application of policies will remain important.
For additional Labor and Employment law
insights from John
Holmquist , visit the Michigan Employment Law
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