By Amy Joyce
Washington Post Staff Writer
Sunday, May 27, 2007
Employers have been put on notice: They can't treat caregivers differently.
Federal law does not specifically prohibit discrimination against those with family caregiving responsibilities, but new enforcement guidance from the Equal Employment Opportunity Commission explains how existing laws prohibiting discrimination based on gender, pregnancy or disability can apply to caregivers, as well. It offers examples: denying a female worker with young children an opportunity that is available to men with young children or refusing to hire a worker who is a single parent of a child with a disability on the assumption that caregiving responsibilities will make the worker unreliable.
The EEOC typically issues enforcement guidance just a few times a year, and courts often refer to it in rulings. Such guidance also often marks a trend in litigation the EEOC may take on. The number of caregiver discrimination suits filed by the EEOC is expected to increase.
The commission started to look at the issue as it became clear that caregivers -- both men and women -- were making up much more of the workforce than in the past.
EEOC employees will be trained in how to recognize caregiver discrimination and connect it to current laws. "It really gives our people a chance to see something new," said Stuart Ishimaru, an EEOC commissioner.
"We needed to make sure our investigators are trained" to connect caregiver issues to other types of discrimination, said Naomi C. Earp, EEOC chairwoman. "And if we can help employers, we killed two birds with one stone."
The new guidance, however, does not mean that caregivers are given extra leeway. They can still be fired for not doing their jobs, like anyone else.
The guidance is "extremely important" for a number of reasons, said Joan Williams, director of the Center for WorkLife Law at the University of California Hastings College of the Law, who began to study caregiver discrimination in 1989.
First, it puts employers and employees on notice "that you cannot treat mothers and other caregivers differently based on assumptions of how they will or should behave," she said. "That's important because bias against mothers is the most open form of discrimination in the workplace today."
The guidance also shows that though discrimination against mothers is the "most common form of caregiver discrimination, it's not the only form," she said. The guidance gives examples of discrimination against adults caring for nieces, nephews, grandchildren, parents and spouses, and also states clearly that caregiver bias affects men as well as women.
In addition, Williams said, the guidance is clear that stereotyping by an employer, whether conscious or unconscious, is evidence of employment discrimination. "What's typically called unconscious discrimination really is discrimination that is automatic and uncorrected," she said. "And this guidance will help people focus on that kind of discrimination and take the time to correct the effect of it."
Dawn Gallina, a lawyer with the Reston office of Mintz Levin Cohn Ferris Glovsky and Popeo, a Boston-based firm, sued after her firm fired her in 2001, for what she called retaliatory reasons. She said that when her managing partner discovered she had a small child, he began to treat her differently and even asked why she hadn't told him about her child when she interviewed for the job.
He spoke with Gallina "about the commitment differential between men and women, how women lawyers have more demands place[d] on them, and [how] it's very hard for them to balance when they have a family," according to the suit.
He also told her what she regarded as a cautionary tale about his experience with a female associate, who, upon her return from maternity leave, inquired about achieving partnership. Gallina's manager was "beside himself" that the female associate would make such an inquiry.
After Gallina complained, she said, she was retaliated against for "embarrassing" the firm. Soon after that, another partner told her that she was not perceived as being as committed as the other lawyers in the Reston office and that she needed to decide whether she wanted to be "a successful mommy or a successful lawyer."
A jury ruled in Gallina's favor, and the firm unsuccessfully appealed, then settled with Gallina in 2005. The terms of the settlement were not revealed.
"Mintz Levin is firmly committed to providing a workplace that offers equal opportunity and fair treatment for all employees," the firm said in a statement through a spokeswoman. "In addition, the firm has long provided for the needs of those who serve as caregivers."
"It's a new century with new issues," said Ishimaru of the EEOC.