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 o 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 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.