On January 11, 2024, the EEOC announced it was settling an alleged sex discrimination claim with a national retail corporation in Ottumwa, Iowa. The allegation was that the store had improperly used sex stereotyping about women with young children.  According to the EEOC statement, there was “… evidence presented by the EEOC, when the employee asked why she was passed over for promotion, a store official noted that she had young children at home and that store management assumed she was not interested in advancing her career [at the store]long term.”  Instead, the store promoted a woman who did not have any children. 

As part of its statement, the EEOC further noted that Title VII of the Civil Rights Act of 1964 prohibits sex discrimination based on a variety of things including “sex-based stereotypes, such as the stereotype that mothers are unreliable, uncommitted employees.”  The settlement provides for $60,000 paid in compensation to the now former employee as well as additional training to “relevant management.”

Pregnant Workers Fairness Act and Family Caregivers

This claim and settlement are of particular note because of the various disconnects statutes create when attempting to both accommodate and ignore that someone might be a mother.  The recent Pregnant Workers Fairness Act requires that pregnancy be assessed in the same manner as a disability and that pregnant women be afforded appropriate reasonable accommodation in the workplace in relation to the needs of the pregnancy. This effectively moves pregnancy into a special category for review. The issue then becomes – what happens when the worker is no longer pregnant, but the family status has changed.

The EEOC has issued a variety of statements regarding “family caregivers,” recognizing that women may be the most frequent family caregivers and are likely to have additional obligations in the home. Recognizing this “cultural standard” the EEOC has stated that unduly restrictive application of the FMLA or similar items may inappropriately impact women, and as a result, facially neutral policies could result in creating a discriminatory situation for women. 

In March 2022, the EEOC further made statements regarding caregivers in relationship to the COVID-19 pandemic explaining the importance of taking into account the caregiver role, citing,  “It would be illegal if an employer refused to hire an applicant who is the primary caregiver of an individual with a disability who was at higher risk of complications from COVID,” and, “It would also be unlawful for an employer to refuse to promote a woman based on assumptions that because she was female she would focus primarily on caring for her children while they quarantined or attended school remotely.” 

Caregiver Responsibility Claims

In 2009, the EEOC previously issued an “Employer Best Practices for Workers with Caregiving Responsibilities.” Although the EEOC does note that this was written before the Pregnant Workers Fairness Act of 2022, it is still worth reviewing this statement when drafting policies or making decisions regarding people who may have caregiver responsibilities. 

The EEOC has always and continues to enforce both disparate treatment claims where someone is specifically treated differently because of sex and disparate impact claims where a policy, practice, or behavior impacts a class of employees disproportionately, even if that policy may be facially neutral. This distinction is the foundation of many of the caregiver responsibility claims and issues that come before the EEOC.   

The Big Picture: Interactive Discussions

The primary takeaway from many of these cases, including cases that have frequently been discussed regarding disability discrimination, is the interactive conversation.

In the 2017 Vetter case, it was found that the Iowa DNR assumed a series of things about Mr. Vetter’s ability to perform his job with or without accommodation rather than having an interactive discussion. As the retail case references here, the EEOC believed that the store assumed the employee wasn’t interested in the promotion because she was a mother. Employers should ask and collaborate, rather than just deciding what a person’s life goals, ability to commit to the workplace, or ability to do the job consists of.