Caregivers are often women
Unlike past recessions, where men were often unemployed at higher rates than women, the COVID-19 pandemic has forced women out of the workforce at disproportionately high rates. This shift in workforce participation will have lasting consequences for years to come.
Women leaving the workforce is not simply a crisis for women; it negatively impacts employers, the economy, and society. Having more women and diversity in the workplace directly correlates with higher employee engagement and retention, and stronger financial results. Providing robust resources and support for women during this workforce crisis is necessary for the long-term success of any business.
There is, of course, more to this issue than retention and general employee morale. There are legal risks for employers who fail to thoughtfully engage with employees about their individual work-related challenges.
First, it can be problematic to treat all workers exactly the same, because strict, no-exceptions policies may have a disparate impact on employees with caregiving responsibilities. Policies and practices that don’t intentionally single out members of a protected class but nonetheless affect those individuals more than other groups can violate federal anti-discrimination laws as well as state laws and city ordinances that include caregivers as a protected class.
Second, a common theme in caregiver discrimination is the assumption by business owners, supervisors, and others that female workers cannot do their jobs if they are pregnant or parenting. These assumptions are considered gender stereotyping and can violate Title VII and other laws. Gender stereotyping is a key component of many caregiver lawsuits. Several high-risk, and perhaps too-common, gender stereotyping practices include:
·Treating women without caregiving responsibilities more favorably than those who have them
·Asking female employees, but not men, about their childcare responsibilities
·Retaliating against employees for seeking leave under the federal Family and Medical Leave Act
·Providing reasonable accommodations for other temporary medical conditions but not for pregnancy
Keep in mind that it doesn’t matter whether a manager is acting with a hostile intention or a genuine belief that they are doing what’s best for the employee. Allowing flexibility and adjustment for female caregiver employees while denying the same for male employees with caregiving responsibilities is likely breaking the law. Making assumptions about an employee’s interest in or ability to take on certain assignments or roles in light of their caregiving responsibilities is also potentially evidence of unlawful bias.
Finally, caregiver discrimination in hiring is another high-risk area that should be addressed and protected against through the training of hiring managers. It is plainly discriminatory to ask questions about marital status and children only of women and not of men (and vice-versa). Even if asked of both men and women, such questions may be seen as evidence of intent to discriminate. Employers should steer clear of any non-job-related questions, and if asked at all, such inquiries should be reserved until after an employment offer has been made and accepted, and only if needed for legitimate business purposes (e.g., insurance coverage).
While this may sound like a “damned if you do, damned if you don’t” proposition, it is not. There are plenty of low-risk, high-reward approaches for managing your workforce. A good place to start is to first consider the reasoning behind your policies and determine if there are alternative ways to achieve your goals.
The rapid and precipitous drop-off in caregiver employment over the last several months has brought caregiver and related discrimination theories into focus as an emerging trend in discrimination theory. Employers should remain alert to these issues and the impacts they have on their workforce.
Stay tuned – Part 3 of this series is coming soon!
 As of now, the EPSLA and the EFMLA are set to expire on December 31, 2020. But employers should be on the lookout for further legislation as the school year moves into 2021.