Can caregiving responsibilities be considered when selecting new hire?


Issue:

Your company has an open position for a marketing director, which requires frequent interaction with company executives, marketing staff, and external vendors. Alexis and David have applied for the position. Both candidates have extensive marketing experience. However, Alexis is the primary caregiver for her elderly father, who has Alzheimer's disease. She requests to work from home part-time, while David is available to work on-site full-time. The vice president selects David for the position, commenting that, while he sympathizes with Alexis’ family situation, he is concerned that her desire to prioritize family responsibilities over work responsibilities would have a detrimental effect on the company's marketing strategy, potentially discouraging future clients and decreasing revenue. Can the vice president consider Alexis’ caregiving responsibilities when deciding who should be the marketing director?

Answer:    

No. The selection decision should not have been based on Alexis’ caregiving responsibilities. By focusing on those responsibilities, the employer engaged in unlawful discrimination. The employer should have evaluated both candidates and made its selection decision based on specific, job-related criteria. Although the federal EEO laws do not prohibit discrimination against caregivers per se, the EEOC has described circumstances where discrimination against caregivers might constitute unlawful disparate treatment under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act. Caregiver responsibilities encompass not only childcare but eldercare or caring for individuals with disabilities.

The EEOC has issued guidance explaining the circumstances under which discrimination against workers with caregiving responsibilities might constitute discrimination. The agency has also issued supplementary documentation, which provides suggestions for best practices that employers may adopt to reduce the chance of EEO violations against caregivers and to remove barriers to equal employment opportunity.

Source:  EEOC Guidance “Employer Best Practices for Workers with Caregiving Responsibilities,” reported in the CCH Employment Practices Guide, New Developments ¶5291.

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