EEOC Guidance May Ease Stress for Working Caregivers

One again, the EEOC confirms that supporting working caregivers is good human resources policy. __________________________

Many employees who provide care to senior or disabled loved ones keep quiet about it at work, even though these responsibilities take a significant amount of time and energy. Why the silence? Some family caregivers fear that they won't be perceived as committed to their jobs. They may have already faced what has come to be called "family responsibilities discrimination (FRD)"—including termination from their job, being passed over for advancement, or denial of the latitude of flex time that other employees might be allowed for educational, sports or other personal activities. 

But family caregivers who believe they have experienced family responsibilities discrimination in the workplace are now more inclined to sue their employers over FRD than in the past. In 2006, Mary Still, a sociologist and faculty fellow at the Center for WorkLife Law, University of California Hastings College of the Law, studied the incidence of FRD lawsuits filed over the past few decades. Still's report, Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination Against Workers with Family Responsibilities, reported a 400% increase in the number of lawsuits filed by workers who say they experienced FRD on the job.

While at present working caregivers are not legally considered a "protected class," the stereotypes about caregivers often form the basis for lawsuits under the Family and Medical Leave Act, Title VII of the Civil Rights Act and the Americans with Disabilities Act.

EEOC Issues New Guidance

In April 2009, the Equal Employment Opportunity Commission (EEOC) released a guidance document, Best Practices to Avoid Discrimination Against Caregivers, to advise employers on avoiding discrimination against workers who are taking care of children, or elderly or disabled adult family members. This document supplemented guidance the EEOC issued in 2007 that looks at how federal anti-discrimination laws apply to caregivers.

The new guidance serves as a road map for companies to help avoid discrimination against caregivers—and resulting lawsuits. It covers three main categories of best practices:

1. General best practices, such as ensuring that managers at all levels are aware of the employer's work-life policies
   
   
2. Practices around recruitment, hiring and promotion, such as focusing on a person's qualifications for the job and communicating to all eligible employees about job openings and promotions, regardless of caregiving responsibilities
   
   
3. Practices relating to the terms, conditions and privileges of employment—for example, monitoring compensation practices and performance appraisal systems for patterns of potential discrimination against caregivers.

Here are some examples of particular actions the guidance suggests:

• To the extent feasible, permit employees to take leave with little notice in case of an emergency, and to use leave in short increments, rather than full days or weeks.
  
  
• Establish leave donation banks that enable employees to voluntarily contribute their leave to co-workers.
  
  
• Post employee schedules as early as possible for positions that have changing work schedules.

This increased attention to caregiver issues isn't just the result of the increase in FRD lawsuits. More and more Americans are serving as family caregivers for elderly and disabled loved ones, which equals increased impact on both employers and employees. An estimated 14.4 million family caregivers are now juggling work and eldercare responsibilities. The 2006 MetLife Caregiving Cost Study: Productivity Losses to U.S. Businesses reported that 6 out of 10 working caregivers made some kind of adjustments as a result of their caregiving, such as reducing working hours, taking early retirement, coming to work late or leaving early, and making calls and sending emails pertaining to care during the work day.

Women Still Impacted Most, But the Demographic is Shifting

Who are these caregivers? The average caregiver is age 46, female and working outside the home earning a yearly income of $35,000, according to the Family Caregiver Alliance. Many of these women are wedged into "The Sandwich Generation": those who are caring for children as well as elderly parents. And women aren't the only impacted employees: today, an increasing number of men are meeting the care needs of a spouse, parent or disabled child.

The good news for many employees is that businesses are increasingly recognizing the toll caregiving exacts on workers—and on the company's bottom line. More and more companies realize that assisting caregivers is part of a good employee productivity and retention strategy. They may offer increased opportunities for family leave, flextime, telecommuting and job sharing. In addition, about 20 percent of companies today offer eldercare referral services, according to a survey of benefits from the Society for Human Resource Management.

Another new trend is the recognition that the constant demands of caregiving can wear down an employee's own health. "Now, in the first shift in eldercare benefits in years, a few employers are offering eldercare programs aimed at the health and well-being of the workers themselves. By encouraging workers who also have eldercare duties to take better care of themselves, employers hope not only to raise productivity, but to scale down health-care costs," reported the Wall Street Journal in June, 2007.

While the new EEOC Guidelines offer a road map to anti-discrimination policies, it's also clear that workers and employers alike are challenged by the growing demand for family caregiving and the demands of the workplace. One thing's for certain: in a down economy when employers are looking everywhere for cost savings, offering benefits that address elder care/worker issues will take innovation and creativity—but will pay off in keeping employees productive.