When the Equal Employment Opportunity Commission (EEOC) issued its "Employer Best Practices for Workers with Caregiving Responsibilities" guidance in April, it was a warning flare: Don’t stereotype or discriminate against caregivers in the workplace. It also was a response to a sign of the times. Just a few weeks earlier, in a case reflecting a national trend, the 1st Circuit ruled for a mother who sued her employer, charging the employer failed to offer her a promotion due to her child-care responsibilities.

"The EEOC guidance is a big reminder for employers to make sure they’re aware of the pitfalls in [workplace] policies, they’re aware of what their obligations are to employees and they’re aware of their own rights," says Maria Danaher, a shareholder at Ogletree Deakins.

The EEOC action comes at a time when the nexus of a floundering economy and caregiver issues is a hot-button topic being discussed everywhere from the break room to the White House. Michelle Obama recently stated that workers should have paid sick days, schedules that give them time for family responsibilities and quality child care on the job. "These types of policies," she said in a speech, "can be the key to whether a family remains economically viable or slips into financial uncertainty."

The commission’s intent in developing best practices, says EEOC Assistant Legal Counsel Dianna B. Johnston, is to foster the type of work environment the First Lady advocates, while helping employers avoid litigation.

The rise in worker caregiving responsibilities—over both young children and older relatives—make the EEOC’s timing especially significant as employers face the challenge of retaining their best employees.

"The economic downturn has brought renewed interest in the question of flexible workplace options, which are particularly important to caregivers," Johnston says. "The document …explains the advantages to employers of having flexible workplace options and identifies best practices to promote a family-friendly work environment."

The new guidance supplements the EEOC’s 2007 document, "Unlawful Disparate Treatment of Workers with Caregiving Responsibilities." The update recommends policies that include allowing employees to use leave to care for ill family members, flexible work arrangements and part-time opportunities with proportional compensation and benefits. It also emphasizes avoiding common stereotypes that may result in unlawful conduct. Those include assuming that female workers’ caretaking responsibilities will interfere with their ability to succeed in a fast-paced environment; that female employees who work part time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees; that male workers do not or should not have significant caregiving responsibilities; and that pregnant workers are less reliable than other workers.

None of that should have been new to Laurie Chadwick’s employer. Chadwick sued insurance company WellPoint Inc. and its subsidiary, Anthem Health Plans of Maine Inc., after WellPoint denied her a promotion in 2006. She said Wellpoint failed to promote her because of a sex-based stereotype that women who are mothers neglect their jobs. At the time, Chadwick was the mother of four young children and was also taking a college course. The district court granted summary judgment for Wellpoint, but the 1st Circuit reversed.

Most experts trace the origins of family responsibilities claims to Phillips v. Martin Marietta, a 1971 Supreme Court case that established the "sex-plus" theory of sex discrimination. The 1st Circuit, in its 2009 WellPoint decision, hewed closely to that ruling, saying cases like Chadwick "stand for the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities."

Caregiver Cases

Employers make a mistake when they take the fact that federal law doesn’t prohibit discrimination based on caregiver status and run with it further than they should. "The biggest pitfall is when an employer thinks, ‘There’s no protected category for caregiver discrimination, so I can ask a worker what she’s going to do with the kids when she has to work overtime,’" Danaher says.

Such employers often find themselves facing a discrimination lawsuit.

"Just about every federal circuit court has one of these stereotyping cases now, and they’re going in the plaintiffs’ favor half the time," says Cynthia Calvert, deputy director of the Center for WorkLife Law. She estimates the center has 1,800 family responsibilities discrimination cases in its database, including Gerving v. OPBIZ in the 9th Circuit.

"In that case, a woman was told straight up by her employer that she had to choose between being a mother and being a worker. She couldn’t do both," Calvert says. In April, the 9th Circuit reversed the district court’s summary judgment for the employer based on Title VII gender discrimination.

"What all this means is that employers need to be very aware of why personnel decisions are being made," Calvert says.

The EEOC guidance is not binding under Title VII, but experts agree it’s a document that promotes fairness for employers and employees.

"It suggests a road map that employers can follow, either to avoid circumstances where an employee files an EEOC charge or, in the event that an employee does file a charge, to be more likely to have a better outcome before the EEOC," says Joseph Lynett, an associate at Jackson Lewis.

But experts also caution that the document could lead to employer confusion.

For example, Danaher says, "The guidance says to engage in dialogue with employees to determine the amount of leave that is appropriate and acceptable based on workload, upcoming deadlines or personal circumstances. That’s great, but the problem is, aren’t we being asked to inject a little inconsistency? Who decides [which worker’s] mother is sicker? In some respects it’s pushing us toward liability by asking us to be inconsistent in our treatment of employees."

Overall, Calvert says, the best practices work as "good personnel hygiene, good personnel law practices. The EEOC hopes this will start a conversation among HR professionals and among lawyers and their clients that could lead to changes in the workplace. A lot of what the EEOC is suggesting will benefit companies economically—and that’s a motivation to produce change."