EEOC has its eye on unconscious biases against women in the workplace

One such area for employers to consider is whether they are following best practices in relation to workers with caregiving responsibilities

The Equal Employment Opportunity Commission (EEOC) recently announced its intention to increase its focus on eradicating discrimination against women in the workplace through a variety of existing and potentially new mechanisms. In early June, EEOC Vice Chairwoman Jenny Yang identified an agency-wide focus on sex discrimination and pay issues for women, stating that although advances have been made in how women are treated in the workplace, some biases (whether conscious or unconscious) remain.

Yang, speaking at a labor law conference in early June, explained that sex-based discrimination is not always as explicit as it may have been in the past and that more subtle forms of bias might demand different approaches to thinking about and dealing with possible discrimination. She stated that society continues to witness notions about women’s places at home and in society that underscore some of the decisions that are seen in the workplace. As an example, Yang noted that sometimes a very common practice such as negotiating a salary that matches prior job experience can cause disparities that may not be job-related. Yang further emphasized that the EEOC will continue to root out unfair treatment in the workplace and press employers to consider flexible schedules and telecommuting to accommodate parents.

Employers should heed this warning and reflect on some of the ways in which their practices or approaches unknowingly may cause them to become the target of EEOC inquiry or investigation. One such area for employers to consider, particularly in light of Yang’s recent comments, is whether they are following best practices in relation to workers with caregiving responsibilities. In 2011, the EEOC supplemented guidance it issued in 2007 explaining the circumstances under which discrimination against workers with caregiving responsibilities might constitute discrimination on the basis of sex, disability or other characteristics.

The EEOC in its 2007 guidance explained that despite the increased percentage of women entering the labor force and the fact that women’s wages account for over one-third of the income in families where both parents work, women continue to be most families’ caregivers with both respect to children and the elderly, as well as in relation to family members with disabilities. The EEOC also stated that while caregiving responsibilities disproportionately affect women generally, their effects may be even more pronounced among some women of color, particularly African American women. The EEOC further noted that men’s roles also have increased, with the amount of time that men spend on childcare nearly tripling between 1965 and 2003 and with working mothers increasingly relying on fathers as primary childcare providers.

In 2011, the EEOC expanded its 2007 guidance by offering some suggestions to employers on the implementation of “best practices” in relation to workers with caregiving responsibilities that would help reduce the chance of the EEOC finding violations by employers against caregivers. Noting that many workers juggle both work and caregiving responsibilities, the EEOC recommended that employers adopt flexible workplace policies to help employees achieve a satisfactory work-life balance, not only to decrease complaints of unlawful discrimination, but also to help employers benefit their customer base and their own bottom line. The EEOC espoused the benefits of workplace flexibility programs as aiding recruitment and retention efforts, enhancing productivity, reducing absenteeism and costs and positively affecting profits, in addition to boosting compliance with federal nondiscrimination requirements.

As perhaps yet another example of the EEOC’s increased focus on ensuring the fair treatment of women in the workplace, Solicitor General Donald B. Verrilli, Jr., in a May 2014 amicus brief in a pregnancy discrimination case against UPS Inc., stated that the EEOC is currently considering the adoption of new enforcement guidance on pregnancy discrimination that would address a range of issues related to pregnancy discrimination under the Pregnancy Discrimination Act (PDA) and the Americans With Disabilities Act (ADA).

Pregnancy bias has been an area of focus for the EEOC in the recent past and the new guidance, according to the solicitor general, likely will take a broad view of when accommodations for pregnant workers are required. For example, while the PDA requires employers to treat pregnant workers the same as similarly situated workers who are not pregnant, it does not require that employers provide reasonable accommodations to pregnant employees, unlike the ADA’s requirement that employers provide reasonable accommodations to qualified individuals with disabilities. Thus, the guidance might say that pregnant workers are entitled to the same accommodations as given to workers with other temporary conditions. It also might identify other pregnancy-related conditions as impairments, thus bringing the ADA more into play in these cases.

Guidance both past and future demonstrates that employers should review their policies and practices to ensure that they are appropriately managing the role of women and caregivers in the workplace. The EEOC clearly has these issues on its agenda and will be carefully scrutinizing employer actions in this area in the near future.

Contributing Author

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Jill Vorobiev

Jill Vorobiev is a member of Dykema's Labor and Employment Group, with an emphasis on labor and employment litigation. Her practice covers a broad-base, representing corporate clients...

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