FRD and the EEOC’s Strategic Enforcement Plan: What Employers Need to Know and Do

Failing to accommodate pregnant employees, paying mothers less and harassing men who take family leave are going to draw the attention of the EEOC over the next several years.  Here’s what employers can do now to avoid the agency’s spotlight.
The EEOC approved a Strategic Enforcement Plan last month, laying out for employers the areas where it will concentrate its investigatory and prosecutorial resources.  Several of the priorities indicate continued scrutiny of family responsibilities discrimination, known as caregiver discrimination to the EEOC.  Employers are beginning to take steps to protect themselves from FRD claims, but many still need to train their employees and get their policies and practices in order.  A good place to start is with the agency’s areas of focus.
  • Accommodation of Pregnant Workers.  The SEP sets out the EEOC’s National Priorities, which include addressing “emerging and developing issues” such as pregnancy accommodation.  Many employers think that they do not need to give pregnant employees additional breaks or chairs or help with lifting, but recent changes to the Americans with Disabilities Act suggests that they do.  Employers wanting to avoid becoming a test case for the EEOC can begin by reviewing the types of accommodations they have made for workers with non-pregnancy-related disabilities, injuries, and illnesses and making similar accommodations for pregnant workers if it would help them to continue to work.  Additional preventative steps include educating supervisors about the business benefits of retaining pregnant workers and encouraging them to be creative in crafting reasonable accommodations as necessary. 
  • Equal Pay.  The EEOC also intends to prioritize enforcement of Equal Pay laws.  Caregivers are often paid less than other workers, typically because of unexamined assumptions about their competence, commitment and value.  Stuart Ishimaru, when he was acting Chair of the EEOC, highlighted this as an area of concern for the Commission. This should be an area of concern for employers, who may want to undertake a review of compensation with caregiving status in mind.  Training HR and supervisors to recognize and eliminate the biases that give rise to unequal pay for caregivers would be an effective prevention step. 
  • Harassment of caregivers.  In addition, the EEOC plans to step up its enforcement of anti-harassment laws.  Complaints by employees with family caregiving obligations often include allegations of sex-based harassment, such as men being ridiculed and ostracized for taking time off to care for family members because caregiving is “women’s work” and mothers of young children being yelled at, disciplined unfairly, and being given undesirable work in an effort to make them quit because supervisors assume that they will not be good workers. The EEOC has already recognized such harassment  in its Enforcement Guidance on caregiver discrimination. Employers would be well advised to make sure that supervisors understand that harassment based on caregiving is illegal.  Ensuring that HR is prepared to investigate and address harassment complaints from caregivers would also be a wise prevention step.
Finally, the EEOC has warned that it is going to step up enforcement in two ways that could affect employers of caregivers.  First, it is going to partner more frequently with private lawyers in prosecuting employee lawsuits.  This is significant because family responsibilities discrimination cases typically involve statutes and common law theories that are beyond the EEOC’s purview.  Involving private counsel will allow, for example, claims to be brought under the FMLA and state anti-discrimination laws and for wrongful discharge, along with claims for violation of Title VII, the Equal Pay Act, and the Americans with Disabilities Act.  The action step for employers is obvious: make preventing FRD a priority.  For starters, implement an anti-FRD policy, train supervisors about what FRD is and why it arises, equip HR to recognize trigger situations and to respond to complaints, and institute a system for measuring key indicators of FRD.
Second, the EEOC will prioritize systemic cases, which are those based on pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, occupation, business, or geographic area. This is bad news for companies that have a dearth of mothers and other caregivers in upper management, because practices in the areas of work assignment, training, promotion, etc. that affect representation in upper management are not hard to document. Employers can begin to right their ships by looking not only at the terms of their personnel policies and how they are applied, but also at the results produced by the policies.  Are mothers clustered around the lower rungs?  Do fathers largely forgo their right to take paternity leave? What are the career paths of caregivers after they have taken family leave or after they have begun working a flexible schedule?  Looking at the evidence the way an EEOC investigator is likely to will show where improvements are needed.

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