New England Biz Law Update
The Equal Employment Opportunity Commission recently issued an enforcement guidance related to unlawful bias against employees with caregiving responsibilities.
The Guidance is significant to employers because it reflects a growing trend of claims in which workers allege they were discriminated against because of their family caregiving responsibilities. Indeed, according to a recent study by The Hastings College of the Law, such cases grew 400 percent from 1996 to 2005.
The Guidance does not create a new protected category, but rather provides examples of when stereotyping or other forms of disparate treatment may violate Title VII, the Americans with Disabilities Act (ADA), or the Family and Medical Leave Act.
While the law is clear that Title VII and other anti-discrimination laws do not expressly prohibit discrimination against caregivers, the Guidance demonstrates many instances in which an employer’s perception about proper roles and stereotypes can lead to unlawful disparate treatment.
The Guidance indicates the EEOC believes this type of claim will persist. Employers should take affirmative steps so they will not only prevail in such cases, but also avoid the claims altogether. The key is to ensure that employment decisions are based on objective criteria, and that assumptions are not made about an employee’s ability to perform a job based on their family situation.
Comparative evidence not necessary
The vast majority of claims based on caregiving responsibilities have been brought by women alleging gender discrimination or pregnancy discrimination. However, the Guidance and recent decisions show these cases are not limited to gender-based claims.
For example, the federal court in the Southern District of New York recently denied a defendant’s motion for summary judgment on a plaintiff’s ADA claim of discrimination because the plaintiff was “associated” with her disabled daughter. As recognized in Abdel-Khalek v. Ernst & Young LLP, discrimination based on an individual’s association with a disabled person is prohibited by the ADA.
Historically, however, the vast majority of these cases proceed as “sex-plus” claims. “Sex-plus” refers to a policy or practice by which an employer classifies employees on the basis of sex plus another characteristic.
The courts have been divided on whether to state a viable claim a plaintiff must show that members of the opposite sex with caregiving responsibilities were treated differently. Significantly, the Guidance states the EEOC will not require comparative evidence. Rather, the EEOC “believes that cases should be resolved on the totality of the evidence and . . . comments evincing sex-based stereotypical views of women with children may support an inference of discrimination even absent comparative evidence about the treatment of men with children.”
Comments and questions about caregiving
Employers should refrain from expressing concerns about an employee’s commitment to perform the job based on gender stereotypes regarding child rearing. The 4th Circuit’s recent decision in Lettieri v. Equant Inc. is instructive.
In Equant, the plaintiff, a female employee, interviewed for a promotion. According to the 4th Circuit’s opinion, during the job interview, the supervisor asked the plaintiff “many personal questions, including whether she had children, what her child care responsibilities were, and how her family felt about her weekly commute between Equant’s headquarters in Reston, Va. and the family home in New York. The interviewer specifically asked Lettieri how her husband handled the fact that she was away from home not caring for the family.”
The plaintiff was not promoted and was ultimately terminated by a new supervisor. Evidence showed the plaintiff’s new supervisor repeatedly told her that she should “consider returning to New York to be with her family.”
In reversing the District Court’s summary judgment for the employer, the 4th Circuit concluded, “[t]here is powerful evidence showing a discriminatory attitude at Equant toward female managers – particularly female managers who have children at home and commute long distances.”
In Sheehan v. Donlen Corp., the 7th Circuit determined “[a] reasonable jury might conclude that a supervisor’s statement to a woman known to be pregnant that she was being fired so that she could ‘spend more time at home with her children’ reflected unlawful motivations because it invoked widely understood stereotypes the meaning of which is hard to mistake.”
The lessons from these cases are clear. Employers must avoid asking about or making any reference, good or bad, to an employee’s caregiving responsibilities. Accordingly, interviewers and managers must be trained to refrain from sharing their personal views about family responsibilities.
Don’t make assumptions
The Guidance recognizes that employers inappropriately “may make the stereotypical assumptions that women with young children will (or should) not work long hours and that new mothers are less committed to their jobs than they were before they had children.”
The EEOC cautions that employers may not make adverse employment decisions based on sex-based assumptions or speculations.
In 2004, the 2nd Circuit addressed this issue in Back v. Hastings on Hudson Union Free School Dist. In Back, the plaintiff claimed she was denied tenure because the defendant’s school assumed she would not remain as committed to her job once she had children.
In support of her claim, Back asserted she was told a tenured position may not be best for her “if she had little ones” and that “it was not possible for her to be a good mother and have this job.” The 2nd Circuit concluded these comments provided evidence of discriminatory intent. Significantly, the court noted the written documentation did not support the defendants’ version of events, but supported the plaintiff’s explanation that she had, in fact, very good performance reviews.
Even adverse employment decisions based on gender stereotypes that are well-intentioned and perceived as being in the employee’s best interest may be the basis of a claim. In Lust v. Sealy, Inc., the federal court for the Western District of Wisconsin affirmed a jury verdict in favor of the plaintiff after her supervisor admitted that, although she was qualified for the position, another supervisor did not consider her for a promotion because she had children and he assumed she did not want to relocate her family.
Employment decisions based on an employee’s actual work performance, rather than assumptions or stereotypes, will not violate Title VII. This is true even if an employee’s unsatisfactory work performance is attributable to caregiving responsibilities. Thus, if an employee fails to meet deadlines, or has other performance deficiencies because of childcare responsibilities, an employer would not violate Title VII by taking an adverse action as long as it treated members of both sexes the same.
An employer’s best strategy to avoid litigation claiming discrimination because of family responsibility is to ensure that objective criteria support every employment decision. Documentation is essential as well. Otherwise, a jury may well conclude that the decision was based on the unlawful animus.
Similarly, if an employer is concerned about an employee’s or candidate’s ability to meet the demands of the job, the employer should not make assumptions, but should simply describe the demands and inquire if the employee or candidate can meet them.
David M. Cogliano is an attorney in the employment law and litigation groups at Davis Malm & D’Agostine, P.C. in Boston. He advises employers on labor and employment issues, with a focus on wage and hour compliance, defending claims of discrimination, drafting and implementing employment related policies, FMLA, and ADA compliance and litigating non-compete agreements.
