New Discrimination Guidelines

On May 25, the EEOC issued a new set of guidelines intended to prevent unlawful discrimination against workers with caregiver responsibilities. And they come at an appropriate time. During recent decades, the federal laws against sex discrimination have made it easier for women to enter the workplace. Women now make up nearly half of the labor force, and the most dramatic increase has been among women with young children. 

In many families, this means both parents work. While women continue to be the primary caregivers of families--caring for children, the elderly and, in the case of illness, for in-laws and spouses--the number of men in caregiving roles is also on the rise. 

This increase has steadily created work-family conflicts, sometimes referred to as a "maternal wall," which limits the employment opportunities for workers with such responsibilities. These limitations can arise from inflexible employer policies, including mandatory overtime, and from employer stereotypes, such as perceiving caregivers as being less committed to their jobs. Men are sometimes seen as poor caregivers and denied parental leave.

The new EEOC guidelines are intended to bring to bear the weight of anti-discrimination law to prevent such practices, even when the actions are based on benevolent reasons, such as assuming that a working mother wouldn't want to move to another city, even if it would mean a promotion. In addition to federal laws against gender-based discrimination, the American With Disabilities Act can be used to protect against the unlawful treatment of caregivers.

The guidelines will apply in cases involving workplace discrimination, including the following:

• Discrimination against women with young children
• Gender role stereotyping during the hiring process
• Sex-based assumptions about work performance
• Stereotyping and discrimination in flexible work arrangements
• Denial of promotion based on the stereotype of how mothers should act
• Stereotyping based on pregnancy
• Refusal to reasonably modify duties to accommodate pregnancy
• Refusal to grant men leave to care for a newborn child
• Refusal to grant a man a part-time position
• Refusal to hire a worker with responsibility for a disabled person because attendance might be affected
• Hostile work environments caused by stereotypes of female workers, pregnant women or male caregivers

However, sex-blind employment decisions that apply equally to both genders do not violate existing discrimination laws or the new EEOC guidelines. The new guidelines are aimed at gender-based discrimination in which the sexes are unlawfully treated differently.

When faced with unlawful practices, a worker should file a complaint with his or her local EEOC office. Workers should bear in mind that employers are prohibited from retaliating against workers who oppose unlawful discrimination by complaining to their employers and participating in the EEOC charge process. These protections extend both to those who file such charges and to those who testify on behalf of a complaining worker. 

Jeffrey Steinberger is a veteran trial attorney and the founder and senior partner of The Law Offices of Jeffrey W. Steinberger, a Professional Corporation in Beverly Hills, California. He is also a renowned celebrity attorney, TV legal commentator and analyst, federally appointed SEC arbitrator and professor of law. 

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