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Meeting of April 22, 2009 - on Best Practices To Avoid Discrimination Against Caregivers

Statement of Dianna B. Johnston,
Assistant Legal Counsel

I. Introduction

Good morning, Mister Chairman, Madam Vice Chair, Commissioners. Thank you for the opportunity to discuss the document that we are issuing today on employer best practices for workers with caregiving responsibilities.

In 2007, EEOC issued guidance explaining the circumstances under which discrimination against workers with caregiving responsibilities might constitute discrimination based on sex, disability or other characteristics protected by federal employment discrimination laws. The document that we are issuing today supplements the 2007 guidance by providing suggestions for best practices. Best practices are proactive measures that go beyond federal non-discrimination requirements.

The document reiterates a point made in the 2007 caregiver document. Federal law does not prohibit employment discrimination based on caregiver status itself. However, federal law is implicated when workers with caregiving responsibilities are treated differently based on a characteristic that is protected by law ? such as gender, race, or association with an individual with a disability.

The document explains that flexible workplace policies not only benefit workers and reduce the likelihood of complaints of unlawful discrimination, but appear also to benefit employers’ customer base and bottom line. Such practices aid recruitment and retention efforts, thereby allowing employers to retain a talented, knowledgeable workforce and save the money and time that would otherwise have been spent recruiting, interviewing, selecting and training new employees. The document cites studies that have found that flexible workplace policies enhance employee productivity, reduce absenteeism, reduce costs, and appear to increase profitability.

Importantly, the document explains that the benefits of these programs remain constant regardless of the economic climate. In fact, as some of today’s panelists will attest, some employers have implemented family-friendly workplace programs such as part-time work, free or subsidized child care, flexible schedules and telecommuting as alternatives to workforce reductions. Such programs can position organizations to rebound quickly as soon as business improves.

II. General Best Practices

The first section addresses general best practices. For example, it advises employers to familiarize themselves and their employees with the Americans with Disabilities Act (ADA), the Equal Pay Act (EPA), and Title VII of the Civil Rights Act of 1964, which includes the Pregnancy Discrimination Act. It also reminds employers that other laws, such as the Family and Medical Leave Act (FMLA) and some state or local laws that are not enforced by EEOC are relevant to employer practices regarding caregivers.

Next, the section suggests that employers’ EEO policies include: (1) descriptions of common stereotypes about caregivers that might result in unlawful conduct; (2) examples of conduct related to caregivers that the employer prohibits; (3) anti-retaliation provisions; and (4) names of offices or individuals that staff may contact if they have questions or need to file a complaint.

There is evidence that top executives tend to support work-life balance policies but that middle managers are more likely to be resistant to such policies. Therefore, the document recommends that employers ensure that all managers, especially front-line supervisors, are familiar with the organization’s work-life policies and supportive of employees who choose to take advantage of available programs.

Finally, recognizing that policies are simply words on a page if they are not adequately enforced, the document reminds employers to promptly and thoroughly investigate complaints of discrimination based on caregiving responsibilities, and to implement corrective and preventative measures as necessary. It also emphasizes the need to ensure that employees who make complaints or who provide information related to complaints about potential discrimination are protected from retaliation.

III. Recruitment, Hiring, and Promotion Best Practices

The next section of the document focuses on best practices related to recruitment, hiring and promotion. It advises employers to review employment policies and practices—especially those related to hiring, promotion, pay, benefits, attendance, and leave—to ensure that they do not disadvantage workers with caregiving responsibilities.

To ensure a level playing field for all applicants, employers are advised to develop and apply specific, job-related qualification standards for available positions and to focus on applicants’ qualifications for the position in question, rather than on stereotypes about caregivers’ work ethic or lack of commitment to their careers.

When looking to fill open positions, the document recommends that employers consider recruiting former employees who have taken leaves of absence to handle caregiving responsibilities. Such individuals have a demonstrated familiarity with and commitment to the organization’s mission, goals and strategies and, as a result, are likely to have an immediate and positive impact on the organization. The document explains that, to ensure a smooth transition for former employees, employers can develop strategies that identify and eliminate barriers to re-entry for caregivers. It also explains the utility of permitting employees who are on personal leaves of absence to attend training and networking events to ensure they remain up to date on the latest developments.

IV. Terms, Conditions and Privileges of Employment Best Practices

The final section of the document addresses best practices that relate to terms, conditions and privileges of employment.

The document recommends that employers review policies related to performance evaluations and compensation to ensure that they are based on job performance and not on stereotypes about caregivers.

Recognizing that employers need to assess whether and how their organizations can accommodate flexible work schedules, the document outlines a variety of flexible work options. It also notes that caregivers might need workplace adjustments other than flexible schedules. For example, pregnant employees might need to be temporarily relieved from heavy lifting or other strenuous manual tasks.

Similarly, employees might need to take reasonable personal or sick leave to engage in caregiving. Of course, when determining what constitutes “reasonable” amounts of leave, employers can take into account factors such as employees’ workload, upcoming deadlines, and personal circumstances. The document notes that employers should ensure that leave is available to male and female employees on an equal basis and that employees are not discouraged, because of protected characteristics such as gender, from requesting leave. Finally, the document explains that employers should ensure that professional development opportunities such as training, high-profile assignments, and access to workplace networks are available to all employees, regardless of caregiving responsibilities.

V. Conclusion

It has been observed that the two most important sources of support in people’s lives are 1) their families and 2) their employment. Employment provides not only economic self-sufficiency but also intangible benefits including intellectual stimulation, social relations, and a sense of self-worth. In short, people want both to be successful at work and at home. The best practices described in this document will help employers develop and maintain an environment in which all workers enjoy equal opportunity to compete, advance and succeed and in which both employees and businesses flourish.

That concludes my remarks. Thank you.


Footnotes

1 Kathy Korman Frey, Adjunct Professor, George Washington University School of Business, “Transcript: Learning to Balance Work and Family”, available at http://www.washingtonpost.com/wp-dyn/content/discussion/2009/04/08/DI2009040802704.html (April 13, 2009).