Commission Meeting of April 22, 2009 -on Best Practices to Avoid Discrimination Against Caregivers
STUART J. ISHIMARU Acting Chairman
CHRISTINE M. GRIFFIN Acting Vice Chair
NAOMI C. EARP Commissioner
CONSTANCE S. BARKER Commissioner
JAMES LEE Deputy General Counsel
PEGGY R. MASTROIANNI Associate Legal Counsel
BERNADETTE B. WILSON Program Analyst
This transcript was produced from video tapes provided by the Equal Employment Opportunity Commission.
Assistant Legal Counsel, OLC
Center for American Progress
National Partnership for Women & Families
Equal Employment Advisory Council
Cynthia Thomas Calvert
Project for Attorney Retention
ACTING CHAIRMAN ISHIMARU: The meeting will come to order. Thank you all for being here.
In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberation and voting.
MS. WILSON: Good morning, Acting Chairman Ishimaru, Acting Vice Chair Griffin, and Commissioners. I am Bernadette Wilson from the Executive Secretariat.
Commissioner Barker will be participating by telephone. Commissioner Barker, are you there?
COMMISSIONER BARKER: Yes, I am.
MS. WILSON: Great.
We would like to remind our audience that questions and comments are not permitted during the meeting, and we ask that you carry on any conversations outside the meeting room, departing and re-entering as quietly as possible. Also, please take this opportunity to turn your cell phones off or to vibrate mode.
I would also like to remind the audience that, in case of emergency, there are exit doors to the right and left as you exit this room. Additionally, the restrooms are down the hall to the right and left of the elevators.
During the period February 25, 2009, through April 21, 2009, the Commission acted on seven items by notation vote:
Approved the Purchase of 600 Dell GX520 Desktop Computers;
Approved a Noncompetitive Contract for Headquarters' Local Phone Service;
Approved a Resolution Honoring John F. Suhre on His Retirement;
Approved a Request to Award a Competitive Contract for the Processing of the 2009 EEO-4 Survey;
Approved a Request for Obligation of Funds on a Competitive Basis for Maintenance of Telephone and Voice Mail Systems for Headquarters and Field Offices;
Approved the Spring 2009 Regulatory Agenda; and
Approved a Change to the Publication Date for an Item on the Spring 2009 Regulatory Agenda.
ACTING CHAIRMAN ISHIMARU: Thank you, Ms. Wilson. Do I hear a motion?
ACTING VICE CHAIR GRIFFIN: So moved.
ACTING CHAIRMAN ISHIMARU: Is there a second?
COMMISSIONER BARKER: Second.
ACTING CHAIRMAN ISHIMARU: Is there any discussion? If not, all those in favor say “Aye.”
ACTING CHAIRMAN ISHIMARU: Opposed? The ayes have it. The motion is carried.
Thank you, Ms. Wilson.
We are pleased to be here today to conduct the latest in a series of meetings we’ve held over the last several years to address discrimination against workers with caregiving responsibilities.
We are also pleased to be issuing the latest in a series of public documents we have developed with an eye toward educating employers, employees and policy makers about why caregiver discrimination matters and how to avoid it.
I am proud of the Commission's leadership on this issue and I am proud of our continued work to address caregiver discrimination in a meaningful way in both the regulatory and enforcement context. This has been an issue upon which we have generally been able to find common ground and have bipartisan agreement, and an issue that many of us have a personal stake.
I believe that the EEOC's work in this area has brought much needed government attention to the issues challenging workers with caregiving responsibilities, and I want to take a moment to thank former Chair Naomi Earp for her leadership on this issue over the years.
I also want to thank our former colleague, Leslie Silverman, who during her tenure at the EEOC was actively involved in working on this issue and was actively involved in our work to help move it forward.
I also want to thank my former colleague, Sharon Tejani, who worked very hard on this while she was here, and now is still involved in this work at the National Partnership for Women & Families.
And finally, I’d like to thank Dianna Johnston, Ernie Haffner and Lisa Schnall of the Office of Legal Counsel for their hard work in putting together this best practices document.
This is a particularly fitting time for this meeting and for renewed public focus on the issue of caregiver discrimination. More and more workers in America have some form of caregiving responsibility.
Families increasingly find themselves in need of two incomes of two parents to make ends meet. Seventy percent of families with children in America rely on the income of a working single parent or two parents who both work, leaving relatively few families with a caregiver at home full time.
Many workers have primary or shared caregiving responsibility for an elderly parent or person with a disability, and as the proportion of our population over 65 increases, more workers find themselves not only caring for children but also helping out with aging parents.
As we will hear from our panelists today, workers with caregiving responsibilities can find themselves stretched further than ever by the current economic crisis. When a family reliant on two incomes to survive loses one person's income to a layoff or downsizing, the whole family suffers.
When a man is laid off and his wife suddenly becomes the family sole source of income, families suffer. Women earn on average about one-third of the family's total income due to the wage gap and the higher proportion of women who work part-time, and women are less likely than men to have health insurance through their employment. Losing two-thirds of a family's income and health insurance due to one's lost job can be devastating to the whole family.
A shocking number of people in this country live in poverty or no more than a paycheck away from it. For a family living close to the poverty line, one worker's layoff or termination can literally mean disaster for the entire family.
The workers who take advantage of the family friendly workplace policies increasingly fear that doing so will somehow make them less valued employees and more likely to be the first to let go in the event of layoffs or cutbacks.
For these reasons, now is the perfect time for the Commission to engage in a renewed discussion about what the law requires with respect to the treatment of workers with caregiving responsibilities and what the research shows with respect to the business and policy case for workplace policies that treat caregivers fairly.
The Commission's guidance on unlawful, disparate treatment of workers with caregiving responsibilities that we issued in 2007 is drawn from Title VII's prohibitions on sex discrimination and the ADA's prohibitions on association with discrimination.
The guidance serves as a useful baseline, because it establishes the Commission's position on the applicability of Title VII and the ADA to discrimination aimed at workers with caregiving responsibilities.
Today, we go a step further, articulating not just the bare minimum the law requires, but also thinking broadly about the ways in which family friendly workplace policies can improve workers' abilities to balance caregiving responsibilities with work, while simultaneously helping employers to steer clear of employment discrimination.
We heard from a number of panelists in 2007 about best practices for avoiding caregiver discrimination in a wide variety of employment contexts. Research shows that many of these policies that help foster work-life balance can contribute positively to employee retention, productivity rates, and health and wellbeing of our children and families and, in the end, to a business's bottom line.
At this time, I’d like to give my fellow Commissioners an opportunity to make opening statements. Vice Chair?
ACTING VICE CHAIR GRIFFIN: Thank you. I, too, would like to thank the prior Chair, Naomi Earp, for sort of getting this ball rolling back in 2007, and I want to thank the Chair now, Stuart Ishimaru, for holding this meeting and keeping this discussion alive; because as people have noted, a lot has changed since May of 2007.
I want to thank the panelists for taking the time to be here today, and for taking the time to craft the thoughtful statements that I know we are going to hear today regarding the best practices for creating real work environments that work for everybody and that provide caregivers opportunities in the workplace and allow employers to retain skilled and trained folks.
As just an indication of things that have changed, not only have people lost their jobs and the impact of that relying, I think, mostly men who statistics prove have lost jobs versus women, the pay gap that we know about and all the other issues when we are relying on just a woman's economic security in the home really adds another dimension to this person's ability to be a caregiver to folks in the family, whether it’s elderly parents or whether it’s a child with a disability or someone else.
And I think, add to that the veterans that we are seeing return from the Iraqi war and Afghanistan with significant difficulties themselves, the impact this is having on their spouses and their children as caregivers, and their parents as caregivers is also compelling when we look at this issue.
So it is particularly appropriate at this time to actually discuss this issue and all the issues that are going to be raised by the panelists, and I really look forward to hearing all your presentations and having the opportunity to engage in a dialogue with you about this. Thank you.
ACTING CHAIRMAN ISHIMARU: Commissioner Earp?
COMMISSIONER EARP: Thank you, Mr. Chairman. Good morning, everyone. I have to tell you, it’s very odd for me to be sitting on this side of the Acting Chair.
ACTING CHAIRMAN ISHIMARU: To the left?
COMMISSIONER EARP: It is very, very strange, very strange.
I want to take just a moment to congratulate the Acting Vice Chair for her recent nomination of appointment to the Office of Personnel Management. Having 20-some years myself career Civil Service, I think that Vice Chair Griffin is going to be an incredible asset to OPM and helping to reform Federal Civil Service.
April 17, 2007, the Commission held a meeting titled "Perspectives on Work-Family Balance and the Federal EEO Laws." This is an emerging issue with today's workforce, and EEOC opened a general dialogue about how stereotyping race, sex and disability based discrimination may be linked to a worker's caregiving responsibilities and thereby violate federal laws, specifically Title VII and ADA.
At that meeting, we heard from three panels consisting of five speakers. A month later, May 23, 2007, we heard four panels with nine speakers address best practices employers might consider to help workers achieve a better balance between work and family. Those panelists discussed human resource practices in various occupations and at differing income levels.
I experienced one of my proudest moments as Chair when a unanimous Commission voted prior to the May 23rd meeting, to approve the enforcement guidance on the unlawful disparate treatment of workers with caregiving responsibilities. When the Commission votes unanimously, it is a rare and a beautiful thing.
The caregiver guidance remains one of my nirvana moments. Again, I also express my appreciation for those who worked so hard to make the 2007 guidance a reality. The Acting Chair has mentioned then Vice Chair Silverman and the staff from the Office of Legal Counsel, but he neglected to mention himself.
Very early on, I think, and especially as a male, he was one of the people interested in making sure those of us who have children and other family responsibilities are treated fairly in the workplace.
I believe caregivers is a very important issue. However, EEOC has a number of high priority issue areas based on Title VII and ADA alone. Our list gets even longer when ADAA, GINA, Lilly Ledbetter issues, systemic enforcement, and a ballooning inventory are added. I am quite surprised we are devoting three meetings in two years to this topic.
To the extent that we are supplementing our previous guidance and underscoring, strongly underscoring, the link to gender, race and disability, I support this endeavor. To the extent that we are confusing the public with this issuance or creating a fiction that caregiver or caretaker status is a protected characteristic under the laws we enforce, I am adamantly opposed.
Both workers and employers should be advised that best practices in EEOC's soon to be issued Technical Assistance document are suggestions. These practices may or may not be reasonable, depending on the workplace, the job and current circumstances.
Best practices do not necessarily have to go beyond the requirements of federal law. Employers should have a reasonable nondiscriminatory business rationale for all human resource policies and practices, which is even more prudent in times of economic uncertainty, and employees also share a responsibility for making sure that a particular workplace is family friendly.
Now if a company decides, for example, not to make itself family friendly, I believe it is doing itself, its shareholders, and its employees a disservice; but I also believe, as long as it treats all employees equally, there is no violation of EEO laws, and there is no mandate to protect caregivers simply because they are caregivers.
With that, I look forward to hearing from our distinguished experts, and continuing my support of worker friendly policies. Thank you.
ACTING CHAIRMAN ISHIMARU: Thank you, Commissioner Earp, Commissioner Barker?
COMMISSIONER BARKER: Thank you, Chairman Ishimaru. I would like to also begin by congratulating Chris Griffin on her nomination. Chris, that is fabulous. I am sorry I haven't had a chance to talk to you personally about it, but you do honor to the Commission by your appointment, and you will have tremendous things to lend to OPM. They are lucky to be getting you. So I am sure your nomination will just sail through, and I am sure you are hoping it will sail through quickly.
COMMISSIONER GRIFFIN: Thank you.
COMMISSIONER BARKER: We will hate to lose you.
COMMISSIONER GRIFFIN: Thank you.
COMMISSIONER BARKER: And Stuart, I also want to thank you for allowing me to phone in this morning. As you probably explained, I am in Montgomery, Alabama, and I am going to make some remarks, and then I've got to cut out of here, because I am going to go right up the street to Southern Poverty Law Center and speak to a group they have assembled for Sexual Assault Awareness Month.
But I did want to make some brief comments about this. I too, would like to express my appreciation to the panelists for the time they have put preparing their comments that they were kind enough to submit to us ahead of time so that I could see what they were going to say without having the benefit of listening to them. I appreciate those comments and enjoyed learning how employers are doing some creative things to try to accommodate their employees.
And I also appreciate the fact that one of the important functions of the Commission is to provide guidance to employees and employers and to provide best practices to suggest ways that employers can take steps to be sure that they avoid any violations of any of the statutes.
That said, I have to second what Naomi's concerns are from this standpoint. I realize that I am coming in late on the game, because I was not on the Commission when all the work was done in preparing and voting on the original guidance, but my concern is the fundamental premise of this document and of the guidance.
I understand now that the guidance has been approved unanimously, I understand, by the Commission that best practices document does nothing more than stay within the parameters that the Commission set in that guidance document and, certainly, OLC has done an excellent job of following those guidelines in a well written document.
My concern is that caregivers is not a protected class. You know, I understand and I certainly share the concerns of employees who are caregivers. I was a single parent, and I certainly struggled with those balances, too. So I know the real life problems that come from having to care for a close family member, but at the same time, I have to keep focused on our mission as the EEOC Commission. And I think we were given specific and limited instructions from Congress on what our role is, and we were given specific statutes to enforce, and the bottom line is that most of the protections for employees who are caregivers arise from the Family Medical Leave Act, and we don't have authority to enforce FMLA, that’s with Department of Labor.
So employees who are working for an employer who has over 15 employees and who have worked the required one year, 1250 hours, are entitled to the time off to care for a newborn baby, adopted child or care for a parent or close family member who meets a definition of having a serious health condition, and that is provided in the statute, and Congress is looking at the possibility of expanding those rights and, who knows, they may do that. But under Title VII, the ADA, the PDA, the various other statutes that we are responsible for enforcing, it is possible for a person to be discriminated against on the basis that he or she is a caregiver. But if that occurs, he is -- there is a violation of the statute, not because that person is a caregiver, but because that person is a member of the protected class protected by that specific statute.
So, my concern is that, by lumping all of these possible situations together and calling it caregiver guidance and caregiver best practices, I am afraid that we, as Naomi said, send to the public the message that we consider caregivers a protected class.
I don't want us to mislead the public. I think it’s just as harmful not to provide guidance as it is to provide guidance that insinuates that employees have rights that they don't have, frankly.
And so my preference, if I had been on the Commission when this issue had been raised, would have been, certainly, to have addressed it, but to have addressed it in the individual guidances for the individual statutes, to explain, for example, that under the ADA, an employee who has to miss work because they are caring for a disabled child cannot be discriminated against, because that is a specific protection under the ADA, not the fact that the person is a, quote, "caregiver" but because the ADA carves out the association prong that allows that person protection.
So, at any rate, I am going to close, Stuart, because I realize I can't see a yellow or red button here, so I may be going over my time, but I want to again express my appreciation for all the work that has gone into this document, but say that, personally, philosophically, I wish that we had approached it from the opposite direction.
Thank you very much, and I am afraid I am going to have to cut out now, but best meeting to all of you, and I miss being with you.
ACTING CHAIRMAN ISHIMARU: Commissioner Barker, thank you for making the special effort to join us today. We really appreciate that.
Let me also join my colleagues in expressing my congratulations to Vice Chair Griffin, an incredible opportunity for the nation and, frankly, an incredible loss for us when you go. But until you go, we are going to make full use of you.
ACTING VICE CHAIR GRIFFIN: Exactly.
ACTING CHAIRMAN ISHIMARU: Until then.. Let me just say briefly before we go to the panelists, I certainly understand Commissioner Earp’s concern, and I think what we did as we dealt with a number of new issues and new ways of packaging it as we looked toward discrimination in the Twenty-first Century under Chair Earp's leadership, it was a new way of looking at things, but not going beyond what the law requires.
I think you were very careful in making sure that we stuck to the law, and I think this guidance in giving best practices lets people know what some employers have done on their own to try to provide a good workplace opportunity.
I don't think we want to create confusion. I totally agree with you, and I think we've taken steps not to do that, and I think your point is well taken, that we should not create a new covered class where there is not one, but certainly using existing law effectively to deal with new issues that are in front of us.
So I certainly appreciate the concerns that have been raised.
COMMISSIONER EARP: I keep forgetting that you guys won and that you can do that.
ACTING CHAIRMAN ISHIMARU: Well, no, but I am not sure if it differs so much from what we've done over the last two years, and I think that we want to build on the good work that has been done. I think this, as we have talked about, was one of those issues that quite often we were in agreement on, and we were addressing new issues that were out there.
So with that, we are going to hear now from Dianna Johnston from our Office of Legal Counsel to talk about the document that we’ve developed.
Someone pointed out to me the other day that Dianna Johnston is in her thirtieth year at the Commission, and it was pointed out to me that I thought that that was a long time. Then I looked at the date when she came, and I said, that wasn't so long ago, and she and I shared a chuckle over that yesterday when she came in for a meeting with me.
Dianna Johnston is the Assistant Legal Counsel in the Office of Legal Counsel, and she’s our expert and leads the team on Title VII, ADEA and Equal Pay Act issues. She was the driving force with her staff behind this document. We welcome you, Ms. Johnston.
MS. JOHNSTON: Thank you. Thank you, Chairman Ishimaru, Vice Chairman Griffin, Commissioners Earp and Barker for allowing me to discuss the document that is being issued today on employer best practices for workers with caregiving responsibilities.
As we’ve discussed this morning, in 2007 EEOC issued guidance explaining the circumstances under which discrimination against caregivers could constitute discrimination based on race, sex, disability or other characteristics protected under federal employment discrimination law. The document that we are issuing today supplements that guidance by providing suggestions for best practices. As the document explains, best practices are, as we all know, proactive measures that go beyond federal discrimination requirements and are designed to help employers to avoid discrimination complaints but also just to help them improve the workplace and, in this case, the work-life balance for employees.
The document that we are issuing today reiterates the point made in the 2007 caregiver document. Federal law, as you all have discussed, does not prohibit discrimination based on caregiver status itself, but it is implicated when workers with caregiving responsibilities are treated differently based on a characteristic that is protected by the employment discrimination laws; and as we know, there has been considerable case law that has developed that has said that there is very often an overlap between discrimination against caregivers and discrimination based on the characteristics protected by the laws we enforce.
This document explains that flexible workplace policies not only benefit workers and reduce the likelihood of complaints of discrimination, but appear to benefit employers' customer base and bottom line. Such practices aid recruitment and retention efforts, allowing employers to retain a talented, knowledgeable workforce, and save money and time that otherwise would have been spent recruiting, interviewing, selecting and training new employees. It cites studies that have found that flexible workplace policies enhance employee productivity, engagement, reduce absenteeism and costs, and apparently 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 policies such as part-time and flexible schedules and telecommuting as alternatives to workforce reductions. Such programs, by retaining talented employees, can position organizations to rebound quickly as soon as business improves.
The first section of the document addresses general best practices. For example, it advises employers to familiarize themselves and their employees with the ADA, Title VII, including the Pregnancy Discrimination Act and the other employment discrimination laws, surely a best practice, regardless of the caregiver issue. It also does remind employers that there are other laws, such as the Family and Medical Leave Act and some state or local laws that are not enforced by EEOC, but that they need to be aware of, because they are covered by those laws.
Next, the document suggests that employers' EEO policies include: descriptions of common stereotypes about caregivers that might result in unlawful conduct prohibited by the employment discrimination laws; include examples of conduct related to caregivers that the employer prohibits, again to protect itself from discrimination claims; anti-retaliation provisions; and of course, as always with the EEO policies, names of individuals or offices that employees could contact if they have questions or need to file a complaint.
There is a lot of evidence that, although top executives tend to support work-life balance policies, middle managers are much more likely to be resistant. And so the document recommends that employers ensure that all managers, especially front line supervisors, are familiar with the organization's work-life policies and are supportive of employees who choose to take advantage of those policies.
Finally, recognizing that policies are just words on a page if they are not adequately enforced, the document reminds employers to promptly and thoroughly investigate complaints of discrimination based on caregiver responsibilities, as they would any other kind of discrimination complaint, and to implement corrective and preventive measures as necessary. It emphasizes the need to ensure that employees who make complaints or provide information related to complaints are protected from retaliation.
The next section of the document focuses on recruitment and hiring and promotion best practices. It advises employers to review their policies and practices, especially those related to hiring, promotion, pay and benefits; to ensure that they don't 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. As we know, that’s an area where there is a particular overlap between caregiver status and gender, because many employers hold stereotypes about women's appropriate role being to take care of their children and men's appropriate role to work and not to take care of their children.
When looking to fill open positions then, the document recommends that employers consider recruiting former employees who have taken leave of absence to caregiver responsibilities, again because these are individuals who already have knowledge about and commitment to the organization's mission, and 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 to identify and eliminate barriers to reentry for caregivers and it explains the utility of permitting employees who are on personal leaves of absence to attend training and networking events so that they can remain up to date on the latest developments.
The final section of the document addresses best practices that relate to terms, conditions and privileges of employment. It recommends that employers review policies related to performance evaluations and compensation to ensure that they are based on job performance and not on stereotypes.
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 that employers might consider. It also notes that, of course, there are other accommodations that people might need other than flexible schedules.
For example, pregnant employees might need to be temporarily relieved from heavy lifting or other strenuous manual tasks, and employees might need to take reasonable personal or sick leave to engage in caregiving. And, of course, it points out, when employers are determining what is "reasonable" leave, it can take into account factors such as the employee's workload, upcoming deadlines, and other circumstances.
It notes that employers should ensure that leave is available, most importantly; 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 gender and caregiving responsibilities.
In conclusion, it has been observed that probably the two most important sources of support in people's lives are their families and their employment. Employment provides not only economic self-sufficiency, but also intangible benefits, such as intellectual stimulation, social relations, and a sense of self-worth. In short, people need and want to be successful both 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 can flourish.
Before I conclude, I would like to add my thanks to my staff, Ernie Haffner who brought his many talents to bear in drafting the 2007 guidance and actually in developing a detailed outline of best practices at that time. When he wasn't able to draft this document because of press of other business, Lisa Schnall, who is new to our office, was commandeered, and in the process has proved herself to be a marvelous addition to the office. Through her work on this document, she has demonstrated not only her excellent legal and writing skills, but also creativity, attention to detail, and a tremendous work ethic.
That concludes my remarks.
ACTING CHAIRMAN ISHIMARU: Ms. Johnston, thank you very much. We will open it up for questions. Vice Chairman?
ACTING VICE CHAIR GRIFFIN: I was intrigued by the discussion about confusion and everything, because I wasn't confused. Really, I read the document, and I thought it was very clear. We state -- and correct me if I am wrong -- federal law does not prohibit employment discrimination based on caregiver status itself.
I think we have said that. We were clear about it the first time, and I thought we were clear again.
Is there anything, Dianna, that you think in here is confusing in any way, because I thought we had achieved the goal of really trying to develop a document that was best practices for employers, that we were doing something good for employers to say this is where you can get into trouble when, you know, it’s not caregiver status, but it’s some other protected status that comes in the guise of somebody in their caregiving responsibilities that can get you in trouble.
Is there anything you think in here is confusing or anything?
MS. JOHNSTON: Well, perhaps I am biased, having worked on it, and --
ACTING VICE CHAIR GRIFFIN: But personally I don't see it. I thought the clarity was great.
MS. JOHNSTON: No, actually, what I wanted to say is, we worked very hard on both the 2007 document and this one to make clear that we’re clear that our mission is to enforce laws prohibiting discrimination based on race, disability, gender, etcetera.
And our point here is just that, first of all, as I mentioned, there is a lot of case law in which courts have said that what employers sometimes see as discrimination against caregivers is, in fact, discrimination based on gender or race.
So we see this document as a way to help employers, and it specifies, these are proactive practices that go beyond the strict requirements of the law, but, in implementing these practices, employers can protect themselves from potential employment discrimination laws by educating their employees about the interaction between those two things and, frankly, by creating a workplace in which there is a higher level of employee satisfaction, which tends to reduce the likelihood that employees will sue their employers.
So as we all know, employees, when they are frustrated, do bring suit, sometimes correctly based on the laws we enforce and sometimes not, but a satisfied workforce reduces that litigation.
ACTING VICE CHAIR GRIFFIN: Thank you very much.
ACTING CHAIRMAN ISHIMARU: Thank you, Commissioner Earp?
COMMISSIONER EARP: Thank you. Dianna, it is true, and it is very clear in the 2007 guidance, that we say there is no intent to create a new protected status. Is that same language specifically stated in the guidance that’s under consideration today?
MS. JOHNSTON: It is.
COMMISSIONER EARP: Tell me where.
MS. JOHNSTON: Okay.
COMMISSIONER EARP: Because I have looked at it a couple of times, and a number of iterations, and I think it’s certainly implied.
MS. JOHNSTON: Okay, first of all, the first paragraph of the document says that we have issued guidance explaining the circumstances under which discrimination against workers with caregiving responsibilities might constitute discrimination based on sex, disability or other characteristics prohibited by federal employment discrimination laws. That is the first --
COMMISSIONER EARP: That’s a reference to the 2007 guidance.
MS. JOHNSTON: But we also say that we reiterate that same point, and in Footnote 1, there is a specific statement that says: "Neither the 2007 guidance nor this document create a new prohibited basis for discrimination. Rather, these documents illustrate circumstances in which stereotyping or other forms of discrimination may violate Title VII or the Americans With Disabilities Act."
COMMISSIONER EARP: Okay, other than the footnote, in the text of the document does it explicitly say that caregivers is not a protected basis?
MS. JOHNSTON: I guess, to me, that statement says -- that footnote says --
COMMISSIONER EARP: Other than the footnote. I agree.
MS. JOHNSTON: Okay
COMMISSIONER EARP: So the question is, other than the footnote, do we have that statement in this document, not the 2007 document which you can incorporate by reference, but in this document, do we have a statement that explicitly says?
MS. JOHNSTON: Okay. In the second paragraph of the text, it says: "This document supplements the 2007 guidance by providing suggestions for best practices that employers may adopt to reduce the chance of EEO violations against caregivers and to remove barriers to equal opportunities."
COMMISSIONER EARP: I acknowledge the references to 2007.
MS. JOHNSTON: No, no, but I am saying -- We are saying this document supplements it by providing suggestions for best practices that employers can adopt to reduce EEO violations.
COMMISSIONER EARP: Could we not just as easily say, this document dated on this date does not intend -- we could have, but we didn't.
And I don't want to lose my time. Let me just ask you one other quick thing. When we say best practices at EEOC, best practices are those proactive techniques that go beyond the law. Is that our own definition of what a best practice is?
MS. JOHNSTON: Yes.
COMMISSIONER EARP: It is EEOC's definition?
MS. JOHNSTON: Well I think it is a generally accepted definition, but it is certainly EEOC's long-time understanding of what best practices is.
COMMISSIONER EARP: Okay. I just want to state for the record that the generally accepted definition that I am aware of, and I did some quick perusal of what a best practice is, is that it is more effective at delivering a particular outcome than any other technique, method or process; that it is defined as the most efficient and the most effective way of accomplishing a task based on repeatable procedures that have proven themselves over time for a large number of people.
And nowhere in any of the literature that I looked at is a best practice described as one that goes beyond what is required by law, but I accept that if we have our own term of art on that, we can establish it as something that is proactive and goes beyond what the law requires.
I have nothing further.
ACTING CHAIRMAN ISHIMARU: Thank you, Commissioner Earp.
Thank you for your presentation. This continues a long line of technical assistance documents that the Commission has turned out in recent years, started, I think, by Chair Dominguez and followed by Chair Earp, in providing information to employers of ways they could comply and go beyond the law.
Employers are always asking me what can I do, what should I be doing? Let me know what I can do. And I think the tradition that was started under Chair Dominguez in providing that sort of information to employers, whether it is to strictly comply with the law or also to talk about what other employers, in fact, have done and have made a business case for doing so, makes sense for them, and they chose to do it, has been helpful to the business community.
So I want to salute the Office of Legal Counsel for drafting this best practices document and letting employers know things that they may consider doing that would fit in with their workplace and their business decisions that they are making.
This goes to help further the request that I get constantly when I meet with employers telling me, what do I do, what do I do?; give me some concrete examples of what I should be thinking about.
And I want to salute the Office of Legal Counsel in continuing the fine tradition that was started a number of years ago in providing these types of guidances and, as has been duly noted, we issue guidances, these technical assistance pieces, after the Commission has come to some sort of policy agreement, which we did back in 2007 under Chair Earp's leadership.
So, Dianna, thank you again. Thank you and your staff for the fine work you’ve done.
We will next hear from a panel of experts, and I will introduce them in the order they will be testifying today.
First, we’ll hear from Dr. Heather Boushey, who is the Senior Economist from the Center for American Progress. Dr. Boushey testified at the hearing we had back in 2007. We are pleased to welcome her back. She is a recognized expert on the impact of labor policy on working families and has written extensively on women's labor force participation, trends in income inequality and work-life policy issues.
Joining her on the panel will be Karen Minatelli, the Director of Work and Family Programs at the National Partnership for Women and Families. Ms. Minatelli oversees the National Partnership's extensive work in the area of work and family policy.
Prior to joining the National Partnership, Ms. Minatelli spent five years at the D.C. Employment Justice Center, ultimately serving as the Director of Policy. She has an extensive background in legislative and policy work on issues important to low income women and families.
Third, we’ll hear from our friend, Jeff Norris from the Equal Employment Advisory Council. He has been the President of the EEAC since 1988. Under his leadership, the EEAC has nearly doubled its membership, and has expanded greatly the scope of services provided to its members. Mr. Norris has represented numerous companies in their corporate management compliance reviews, and has assisted major companies in conducting internal self-audits of glass ceiling issues.
Finally, we’ll hear from Cynthia Calvert. Ms. Calvert is the Deputy Director of the Center for Work-Life Law at the Hastings College of Law at the University of California in San Francisco. Work-Life Law is a nonprofit research and advocacy organization dedicated specifically to understanding and eliminating caregiver discrimination. Ms. Calvert is the co-author of several books with Joan Williams, Director of the Center for Work-Life Law, including the only legal treatise on family responsibilities discrimination. We welcome you, Ms. Calvert.
So we’re going to start with Dr. Boushey. We look forward to your testimony. Your written statements will be made part of the record. We would ask that you give a summary type presentation and leave us some time to have some time for questions. Dr. Boushey?
DR. BOUSHEY: Thank you so much, Acting Chair Ishimaru, for inviting me to speak here today to you about the importance of the EEOC's new guidance around discrimination against caregivers and why this is so important at this moment in time for working families.
My name is Heather Boushey, and I am a Senior Economist at the Center for American Progress Action Fund.
For over a generation now, parents have been struggling to balance work with their responsibilities at home. Coping with discrimination against those with caregiver responsibilities makes finding this balance ever more challenging.
The recession is exacerbating these challenges. We must update antiquated policies and ensure that, as we rebuild our economy, we recognize and address the fact that both men and women work outside and inside the home.
Women are increasingly taking on the responsibility of supporting families, as men's jobs have disappeared. Since the recession began back in December of '07, men have lost four out of every five jobs lost. The share of men in the United States with a job right now is at its lowest point ever, 68.2 percent among adult men. So far, half of the jobs that have been lost during this recession have occurred in either construction or manufacturing where men are the overwhelming majority of workers. On the other hand, women's jobs have been sustained over the past year by hiring in the government and health care sectors where they are the majority of workers.
So the recession is amplifying the long term trend towards the importance of women's earnings to family wellbeing. Yet women continue to earn 70 cents on the male dollar, much of which cannot be explained with the kinds of jobs that men and women hold or their skill levels.
As male unemployment rises, pay discrimination has become a more pressing issue for millions of families. Since the typical husband in a dual earner family brings home a little under two-thirds of his family's total income, the loss of his job and often his health insurance can quickly push a family into severe economic hardship.
Now Congress has been dealing with some of these issues in passing the Lilly Ledbetter Fair Pay Act, but there is still more to do. The Paycheck Fairness Act is still sitting in front of the Senate, and its passage is critical to ensuring a fair day's pay for every worker. But the administration also needs to ensure that the laws we already have on the books are enforced, and that workers with caregiving responsibilities are not discriminated against.
In this recession I applaud the EEOC issuing this guidance on combatting family responsibility discrimination, because it’s certainly an important goal right now. Family responsibility discrimination occurs when workers are treated differently at work because of their caregiving responsibilities for children, elderly parents or ill relatives. It is a form of sex discrimination. Women hit what many have called the maternal wall at work, given limited opportunities for advancements once they have children. Men, on the other hand, often experience a lack of support when they seek to participate in child rearing activities. Making sure that no one is fired or discriminated against due to family responsibilities is especially important, because the unemployed are finding it increasingly difficult to get back to work.
The typical person who is unemployed today has been out of work since before the elections this past November, and nearly a quarter of those unemployed have been out of work for at least six months, the highest level since the mid -- early 1980s. Right now, there are more than four workers unemployed for every job available. In February '09, the latest data we have available, there were 12.5 million unemployed workers but only 3 million available jobs.
Establishing job protective family medical leave for more workers would help to ensure that no worker is pushed into the masses unemployed because they need to care for a sick child or need time to recover from an illness. No family should have to cope with the wage earner losing a job because they needed time off or some accommodation to care for a sick child or family member. Yet policies such as the Family Medical Leave Act cover only about half the labor force, because they exclude workers in small firms. Congress is considering expanding this to smaller workers.
Establishing the right to job protected paid sick days would also guarantee that no worker loses a job because of a minor illness. Now the recession has also led many employers to cut their hours sharply. The share of workers who hold part-time jobs right now due to slack work or business conditions is now at its highest since the 1950s. But shorter workers mean that millions will be left without basic benefits, such as health insurance coverage and paid time off. Access to health care benefits for part-time workers is now ever more critical.
The recession is sadly turning out to be deeper and more protracted than many had predicted. The American Recovery and Reinvestment Act, which we passed just a few months ago, is a crucial down payment on creating more jobs in the months to come and laying the foundation for long term economic growth. In particular, the recovery package will help states avoid cutbacks, safeguarding some women's jobs. But the recovery package alone will not be enough to close the gap between what the economy is producing and what our economy has the capacity to produce.
Work-family balance policies are an excellent investment in our long term economic growth, while also providing short term economic stimulus, and they could not be more important right now.
The paper that is being released today on best practices for workers with caregiving responsibilities could not be more urgent, as workers and employers struggle with how to cut back hours or lay off workers in these tough economic times. It would be sad if workers with caregiving responsibilities had to take the brunt of those kinds of cutbacks. Ensuring that workers can be both good employees and good caregivers is a good place to start to rebuild our economy and secure our economic future.
Thank you for inviting me here to speak to you today.
ACTING CHAIRMAN ISHIMARU: Dr. Boushey, thank you very much. Ms. Minatelli?
MS. MINATELLI: Good morning, Mr. Chairman, Madam Vice Chair, Commissioner Earp. Thank you very much for the opportunity to testify today about the importance of employment policies that support caregivers in the workplace, especially in the difficult economic times we face.
We are very pleased that the EEOC is continuing to use its public meetings to draw attention to how workplaces treat caregivers, building on the guidance on caregiver discrimination the agency issued earlier.
I am Karen Minatelli, Director of the Work and Family Program at the National Partnership for Women & Families, a nonprofit, nonpartisan advocacy organization with more than 35 years of experience at promoting fairness in the workplace, access to quality health care, and policies that help women and men meet the dual demands of work and family.
One of our proudest accomplishments is leading the fight for passage of the Family and Medical Leave Act; the only federal law that helps our nation's workers meets those dual demands. Our experience tells us that programs that help workers meet these demands are cost effective, good for families, good for businesses, and good for the public health.
As you have heard in prior EEOC meetings and today from Dr. Boushey, women are in the workforce to stay, and they are increasingly the sole financial support for their families. Despite this fact, the fact that women's labor participation has increased, women remain the primary caregivers of children or the elderly and for more and more women in the sandwich generation, of both. And caregiving responsibilities do not disappear in a recession. Instead, employees' responsibilities are heightened in these tough economic times, and so too, are the nation's and employers' mandates to address them.
Because of our work and recent research we have done, my testimony will first highlight the problems facing two groups of caregivers, low income workers and workers with caregiving responsibilities for older family members. Then I will talk about best practices for caregiving workers and why those practices are in an employer's best interest.
In November 2008, the National Partnership published the results of our survey of employers and workforce development providers that examined the barriers facing low income women, especially those leaving welfare, when they try to maintain steady employment. Beyond demonstrating the need for good pay and benefits, our survey highlights the struggle facing those women. In order to maintain paying jobs, they need job support like childcare and flexibility, which you will hear about later, as well as basic labor standards that allow them to fulfill caregiver responsibilities.
Many of the employers we interviewed, however, viewed employee reliability as the failure of women to show up for work or to show up on time, not as a breakdown in support that those women need; and the employers failed to recognize lack of adequate childcare or of basic labor standards, such as paid sick days or paid family and medical leave, as areas where employer policies could make a difference.
Caregiving responsibilities are not limited to women leaving welfare or to the needs of young children. More and more workers need job supports and protections in order to care for older family members, and this number will only continue to grow. As I detail in my written testimony, the likelihood of having a chronic health condition increases with age, as does the likelihood of having more than one such condition. So the increase in the older population will also increase the need for caregivers.
Family caregivers, approximately 61 percent of whom are women, provide 80 percent of care for people with chronic conditions, and overall caregiving represents an estimated economic benefit of $350 billion per year. Family caregiving is a critical part of maintaining and improving quality of life, and can result in improved outcomes for patients. However, caregiving can lead to health problems for the caregiver, and caregivers for adult members with chronic conditions often have to use their own savings and resources to provide this care, leaving them without resources for their own necessities or retirement.
In addressing some of the problems facing working caregivers today, there are many best practices employers can initiate, and I will outline just a few of them.
First, all employers, regardless of their size or industry, should ensure that their employment policies don't discriminate against women and caregivers. Now, more than ever, no worker can afford to be paid less, to be assigned to gender segregated, lower paying jobs, or to lose out on an opportunity for advancement because of caregiving responsibilities.
Second, employers should institute specific basic labor standards, such as part-time parity, job protected paid sick days, and paid family and medical leave. Women represent over 70 percent of part-time workers so the current lack of parity, which cuts part-time workers out of advancement opportunities or basic labor standards and requires them to pay more than the applicable pro rated share of their benefits, falls heavily on women and caregivers.
In addition, job protected paid sick days and paid family and medical leave help ensure that employees can meet their caregiving responsibilities without endangering their economic security. The best employers already provide these basic labor standards, and you will hear later about some progressive companies and all the great things that they are doing. But not all employers do, and at the National Partnership, we are leading campaigns to make these labor standards widely available to employees.
Paid sick days are essential for ensuring that workers can address short term illnesses or seek preventive care. Yet nearly half of all private sector workers do not have access to paid sick days, and for low wage workers, the problem is even greater. Three out of four private sector low wage workers do not have paid sick days. This makes it difficult, if not impossible, for them to get the care that can help them recover without spreading that illness to co-workers or the public. Similarly, paid leave allows workers to address their own or a family member's serious health conditions without losing their jobs or wages. These are absolutely essential for low wage workers who can least afford to take unpaid time or risk losing their jobs, and they are especially necessary in these tough economic times where workers' economic security is so precarious. But these basic labor standards aren't only good for workers and their economic security. They are also good for business and our national economy.
As I have detailed in the written testimony, studies show that policies like paid sick days and paid leave increase worker productivity and decrease job turnover, both of which save employers money. In addition, best practices that keep workers employed and financially stable, decrease the strain on state programs.
The economic crisis should not give employers an excuse to cut back on supports for caregivers. The best employers know that these policies more than pay for themselves.
In light of the EEOC's guidance on best practices related to caregiving responsibilities and the attention the EEOC is drawing to the importance of these policies in times of economic strain, we urge employers to ensure that their policies enable workers to meet their caregiving and workplace responsibilities, and we urge the EEOC to continue to focus on caregiving issues through meetings like this and through its enforcement of cases involving discrimination.
ACTING CHAIRMAN ISHIMARU: Thank you very much. Mr. Norris?
MR. NORRIS: Thank you, Acting Chairman Ishimaru, Acting Vice Chair Griffin, Commissioner Earp. On behalf of the more than 300 corporate members of the EEAC, I very much appreciate the invitation to share with you some of the programs that our companies have implemented in order to ensure that individuals with caregiving responsibilities are afforded equal employment opportunities.
I, too, would like to commend the Commission on today's release of the written guidance. I will address the confusion issue at the conclusion of my remarks, but I think that the information that you have provided will be very helpful to the public. In the course of putting together my remarks, I actually polled the EEAC members to try and get from them examples of what they felt their best practices were in this area, and I actually got those results and compiled the testimony before I had a chance to read the guidance that you are issuing, and I will say perhaps I am not surprised, but I was relieved to find that there was amazing consistency between what you say we should be doing and what we are doing. And in fact, I think that some of the examples that were provided by the EEAC members can annotate very well the guidance, and that’s the way I would like to deal with my testimony today.
I note that the best practice -- the title of today's session is "Best Practices to Avoid Discrimination Against Caregivers," and I would like to emphasize that, with respect to the large companies that I am fortunate to represent, the initiatives that they are taking in this area is not so much designed to avoid discrimination, as important as that is; as it is to be deemed to be employers of choice and, therefore, competitive for the best talent in the marketplace. And so for us, best practices to promote employment of caregivers would be as equally an appropriate title as the one that you have selected.
Now what I would like to do is just sort of hit the highlights of our best practices, again in light of the guidance that you have issued today. For those who have copies of the testimony, on page 2 we talk about current programs to facilitate caregiving responsibilities.
With respect to childcare, we note back-up childcare, adoption assistance, both of which were mentioned in your guidance. One of the things that many of our companies do is to provide new mother care centers for employees who have infants that they are nursing. That is not specifically mentioned in your guidance.
With respect to adult and elder care, you do mention the fact that there often are consulting services that are available to individuals and free information. Our companies are doing that, but with respect to adult and elder care in particular, some of the things that they are doing provide assessments of your home facilities for suitability of living conditions for the elderly, as well as evaluations of assisted living facilities and back-up medical care as well. So our companies are doing quite a bit in that area.
With respect to individuals with special needs, one of our members has a program that I found particularly innovative; and that is a program designed for their employees who have children or grandchildren with special needs, and while I am not an expert in federal benefits, apparently a child with special needs that has assets in excess of $2,000, which is often well covered by insurance -- they are denied federal benefits. And so what this company has done is provided a series of estate planning services that will enable these individuals to establish trusts for those types of assets so that the individual with special needs doesn't lose eligibility for federal benefits, and the same time has provided a structure for their financial wellbeing on an ongoing basis.
You also talked generally about leave policies for caregiving, and a couple of the companies cited examples of leave policies which sort of envelope the required FMLA leave. What these do is they are designed to provide leave for individuals who have not yet qualified, met the minimum eligibility requirements for FMLA or, for individuals who may have exhausted their FMLA leave, it provides ongoing benefits beyond that, and often this leave is given with benefits attached to it, which addresses one of the issues that was mentioned earlier.
I would like to turn now to workplace flexibility, because I do think this is an area that addresses the current economic situation that has already been mentioned that many of our companies are motivated to keep their employees employed, and that flexible work arrangements is one way to avoid unnecessary layoffs, but I think it needs to be emphasized that these flexible workplace arrangements almost need to be tailored to the unique circumstances, and those circumstances need to take into account the business needs of the company. They need to take into account the needs of the employee, and they also need to take into account the ability of the employee to handle a flexible work arrangement, because not all employees can do that. But with that background, your advice, guidance, does talk about work schedule or location adjustments, adjustable hours, modified work weeks, off-site work, things of that sort. But it’s in the area of time off from work that I want to spend a little bit of time.
There was one company that, it seemed to me, had a particularly good approach to time off for caregivers. They provide vacation and carry-over advance, so that if you get to the end of the year and you haven't used all of your vacation, but you need it, you can carry it over to the next year and, conversely, if you are in a year and you don't have enough vacation available, you can borrow it from the incoming year to provide that transition. They also provide part-time regular work, and these are situations where an employee works part-time, 20 to 30 hours, and they can do so for up to two years without any loss of benefits at all; and if the needs, the caregiving needs, extend beyond two years, they can have extended part-time where the benefits continue, but they continue at somewhat of a reduced level.
This company also provides leaves of absence for extended leaves for specific purposes of caregiving, and sometimes those are with or without benefits, and personal time now is becoming increasingly important. I think your guidance does address the fact that there sometimes are needs for people just to take a couple of hours off, and so many systems previously, it was an administrative nightmare to get a couple of hours off to go to the doctor, and our companies are addressing that with streamlined procedures for short term time off.
And then I wanted to conclude by assessing the issue of compliance with nondiscrimination requirements. As I mentioned earlier, what I have talked about are being used by our companies as a way to attract a good workforce, not to avoid discrimination, but I do think it’s important to emphasize -- and this does go to the concerns that were addressed a little bit earlier -- that these benefits not be interpreted as being a mandate but, rather, as a best practice, something that is offered over and above minimum requirements.
For example, not all establishments are large enough to accommodate on-site childcare or new mother care facilities. Not all jobs can be performed on a flexible basis. Not all jobs can be performed on a flexible basis on a continuing arrangement and, as I mentioned earlier, some employees are capable of working in a flexible arrangement, where others are not, and also that many of these benefits are provided on a short term basis, short term in terms of the employee's needs or short term in terms of the company's ability to do so.
So I think, as you and your staff look at these programs, you need to be looking at it with those eyes -- through those eyes. The issue, of course, is are similarly situated people being treated in the same way, regardless of their race, gender, disability status and so on. And I think, in terms of the issue of confusion, it’s one thing for us sitting here on M Street in Washington, D.C., in the Headquarters to talk about these issues, and I think that the guidance that you have provided is very helpful, as I mentioned, it is things that -- in many cases, things we are already doing, but there could be a tendency out there in the field -- and I am thinking about cases in which there are investigations that are ongoing, and your staff doesn't always view this with the nuanced eyes that you do or that we are considering it here.
So I do think it’s important for you to be emphasizing to your staff that there is not a new protected category, that these are best practices over and above requirements, and that they have to be evaluated on a case specific basis. Thank you.
ACTING CHAIRMAN ISHIMARU: Thank you, Mr. Norris. Ms. Calvert?
My name is Cynthia Calvert, and I am the Deputy Director of the Center for WorkLife Law. WorkLife Law works with employers, employees, lawyers, legislators and others to identify and eliminate family responsibilities discrimination, also known as caregiver discrimination.
Under the direction of Distinguished Professor of Law, Joan C. Williams, we are currently conducting research pursuant to a grant from the Alfred P. Sloan Foundation about flexibility stigma. In addition, we are convening next month a working group of prominent management side employment lawyers to create tools for employers to use to prevent family responsibilities discrimination claims.
WorkLife Law has identified a number of best practices for employers to use to prevent caregiver discrimination claims. These include training for managers, supervisors and human resource professionals about the causes and common patterns of caregiver discrimination, adopting a policy stating that the employer will not discriminate based on family caregiving obligations, and reviewing other policies such as those relating to hiring, attendance, leave and promotion to ensure that they do not negatively impact family caregivers.
This morning, I would like to discuss a different best practice, and that is the role of flexible work arrangements in preventing caregiver discrimination claims. This topic is particularly relevant now, in light of the recent economic downturn.
There have been mixed reports in the media about the effect of the economy on flexible work programs. Some state that employers no longer feel the need to offer such programs, and employees fear to use them. And others report that employers are using such programs as options to avoid layoffs in order to retain their valued employees. This variety of responses to the recession demonstrates that employers will benefit tremendously from the document the Commission is issuing today.
Let me first address how flexible work programs play a role in preventing caregiver discrimination. Having an effective flexible work program is not a magic bullet that will shield employers from claims. An employer could, for example, provide a terrific reduced hours program and still discriminate against a mother or father of a young child by denying training and promotions based on the assumption that he or she is not committed to work.
While not a magic bullet, best practices flexible work programs greatly reduce employers' chances of being sued by their family caregiver employees for two reasons. First, stigma associated with use of flexible work arrangements can often lead to claims of caregiver discrimination. A best practices employer that actively works to prevent the stigma will also necessarily work to prevent the discrimination at the same time.
Second, in implementing effective, nonstigmatized flexible programs, employers often work with management and workers to address the assumptions that underlie caregiver discrimination and take steps to create cultures that are supportive of employees' lives outside of work. In so doing, they cut discrimination off at the pass.
The economic downturn does not change the beneficial role nonstigmatized flexible work programs can play in a company's risk management program. In fact, the slow economy gives employers an additional need for programs such as reduced hours, job sharing, and telecommuting because of their potential to save costs. The challenge for employers in a recession is threefold: Control costs; match the supply of workers to the demand created by the amount of work to be done; and maintain their companies as viable organizations. Flexibility helps employers in all three respects.
If employers reduce their supply of workers by not laying them off but by asking them to reduce their hours and pay, they match their supply of workers to the work and save on payroll costs. In addition, they save severance costs and the administrative costs related to managing large scale layoffs. Additional savings may be realized through allowing employees to work at home to save on office costs. And importantly, employees who are not laid off remain available when the work increases as the economy turns around and more employee hours are needed.
This leads to an important question. If employers provide flexible work programs, will employees use them? There have been reports of employees deciding not to work flexibly, because they fear they will be first in line when the layoffs come. At many workplaces, this is a legitimate fear.
At WorkLife Law we have received numerous complaints from employees who believe they have been targeted for layoffs, because they work a nonstandard schedule. A best practices employer would work actively to allay those fears and to make flexible work a viable option that employees could use without derailing their careers.
In conclusion, employers have the opportunity and the incentive in this economy to adopt best practices that will give employees the freedom to meet their family obligations by cutting back their hours, working from home or taking off blocks of time. If implemented carefully, with training and an emphasis on removing stigma, these flexible programs will reap rewards for employees as well as employers, who can expect a reduction in exposure to caregiver discrimination lawsuits. Thank you.
ACTING CHAIRMAN ISHIMARU: Great. Thank you, Ms. Calvert. We will open it up for questions, starting with the Vice Chair.
ACTING VICE CHAIR GRIFFIN: Okay. Jeff, I loved what I read in your remarks about the company that did do the -- provide the services on the special needs trust. It’s a very specialized area of law. I know about it from my previous work, and just having the access to that is incredible, so I thought that was amazing.
I also think that, as -- just look at anyone who has been in the hospital for anything serious lately. How long do they keep you? Five hours, you know? Open heart surgery, you are out in a day. More and more, the tendency is that people aren't going to be hospitalized for long periods of time. We have a growing movement in this country, especially with people with disabilities, that we don't institutionalize people anymore. There is a tendency to provide more and more home health care, but with all of that, which is to give us a greater quality of life, comes the need for more caregiving in the home.
And so I just think that being able to provide all of the things that you have all talked about for employers to provide that, you know, just enhances our quality of life and truly does, I think, take away the opportunity to say that they would discriminate based on caregiving responsibilities.
Cynthia, I was interested, have you done studies -- or anyone can jump in here -- to look at, you know, have the provision of flexible work schedules and other things that really do help people be able to fulfill their family responsibilities as well as work -- have they resulted in a decrease in discrimination lawsuits based on whatever the protected class they’re in?
MS. CALVERT: We haven't done that study, because I had some difficulty imagining how we would go about doing that. In a sense, we are trying to prove a negative. So I haven't yet been able to design that type of a study.
Anecdotally, I can tell you that I believe that that is true. We talk with employers frequently, and we talk with them about what’s happening in their workplaces on a day to day basis with their family caregiving employees, and those who have the most progressive, proactive, nonstigmatized flexible work policies are also the ones who have the fewest complaints, and they don't tend to have the run of the mill complaints that we see from many other employers, such as a supervisor who will straight out say to an employee, I am not promoting you because you take off too much time to be with your family.
ACTING VICE CHAIR GRIFFIN: Karen, you know that we are placing increasing emphasis here at the EEOC on our systemic program, and really trying to look at things more nationally.
Are there any types of systemic issues that you think we should be looking at, and actually, you know, before they get to being systemic cases, doing something to help alleviate or prevent something from happening?
MS. MINATELLI: Well, I know we are very glad that the caregiver discrimination guidance that you all released makes it clear that these kinds of issues can be handled under Title VII, for example. And so giving that information out really broadly would be useful for people, so that they can -- although there isn't a protected -- as we have been saying, protected class of caregivers, there are ways people can protect themselves on the job, in their employment. I think that really would be very important to continue to get that word out.
ACTING VICE CHAIR GRIFFIN: Great!
ACTING CHAIRMAN ISHIMARU: Great. Thank you very much. Commissioner Earp?
COMMISSIONER EARP: Thank you, just one question for each of the panelists, please. First of all, thank you for taking time to come and share your expertise with us.
The guidance that we have under consideration today basically says that employers are not to ask about caregiving responsibility, childcare arrangements, those kind of things, but we also encourage employers to assess recruitment, hiring, promotion procedures, terms and conditions to make sure that workers with caregiving responsibility are not disadvantaged.
So I would just be interested to hear very briefly from each of you how would you go about doing that? We don't collect any data on who is a caretaker or caregiver, and you are not allowed to ask the overwhelming majority population of workers, primarily women, about it.
So to ensure that an employer has terms and conditions and policies and procedures that do not disadvantage this group, how would you go about advising the employer? Dr. Boushey, can I ask you first?
DR. BOUSHEY: I admitted that as well as I was reading the best practices, that that’s a little bit challenging. You don't ask, but you need to accommodate or, you know, you want to try to accommodate.
I would note two things. First, you know, caregiver status may change. It certainly changes over a person's lifetime, and it may change quite quickly. You know, one day you are fine; the next day your grandmother has a heart attack, and now you need to go and help her or something.
So that these are not necessarily things that you know for all eternity for any single worker. But I think, fundamentally -- and what I think is actually -- It is so exciting about this line of work that the EEOC is doing is that many of this requires a change in workplace culture, and it requires a change in how every employer in America does business and how they think about their employees.
The reality is that the workplace has changed. It used to be that most workers had someone at home who could provide care for ill family members or pick up the dry cleaning, do all those things. It is no longer the case.
And so every worker needs accommodation in some way for the fact that they most likely don't have someone at home. And so getting employers and getting all of us to start talking about that and what employers need to do, I think, is the first step.
And so I applaud this effort, because we are talking about it, and we are looking at what firms around the country are doing. It is case by case.
So I would encourage every employer to be thinking about how it is that they are recognizing that workers have responsibilities outside their homes and how they are working with their employees to make sure that their schedules and their workplace structures work with both the workers and the employers.
So starting the conversation and making it honest and recognizing everyone's needs is the best thing that we can probably do right now.
MS. MINATELLI: Yes. Well, I certainly agree with everything that Dr. Boushey said. I would say I think it is very important in trying to work through this conundrum that employers are careful, very careful, in their initial conversations with people. And I think that’s where the biggest risk is. If people are talking about caregiving in the interviews and that kind of thing, a very great chance that, if some discrimination is going to occur, that’s when it might occur.
So I do think that that guidance -- that that should not be happening during those kinds of conversations is very good. But once somebody is in the workforce and is looking to address some kinds -- their dual demands, as I talked about, then that’s the time when we want to see employers listening well and working with them as best they can to find solutions that work for both the workplace and the workers; because again as we’ve seen and as we’ve heard from other people, when workers can address their home responsibilities, they are much more able to be productive and effective in their workplaces as well.
MR. NORRIS: Well, I think the intent of the guidance is you want to separate the decision to employ from the need to accommodate a flexible work arrangement or caregiving needs.
There are basically three ways that I would recommend a company approach that. As I mentioned at the outset, many of our companies are promoting their caregiving benefits as a recruitment tool. So that when the individual first comes to the -- In fact that may be one reason why the individuals come to the company in the first place, because of the availability of those sorts of benefits.
Going along with that, of course, is the responsibility on the employer, if they have them, to make sure that the employees are aware of the benefits that are available to them.
Once the employment decision is made, then I think the need for flexible work arrangements or other benefits needs to handled on a case by case basis. As I said, it is very, very fact specific as to when these benefits can be made available and to whom they can be made available, but there is a third part of this as well that was briefly touched upon, and that is that employers have an obligation to make sure that the supervisors are aware of these benefits and that they should not necessarily -- There should be no negative connotations associated with an employee availing himself or herself of those benefits, so it’s really a three-part approach to that.
MS. CALVERT: I’ve had the opportunity to advise employers about looking at their policies and seeing how they would impact caregivers, and they don't necessarily need to know the status of their employees as it exists at that moment in order to review their policies, for example; if the employer had a policy on its books that said during the first year of employment, no employee can take any sick leave -- that actually has been on some employers' books, and courts have found that that has a disparate impact on women, because they tend to become pregnant; so they are the ones who would most likely need to have the sick leave.
If it had that type of policy, it would know, pursuant to guidance from the Commission, that it should reevaluate that and probably remove that, even if it doesn't at present have a woman who would be impacted by that.
They also can look at their policies in light of their past experience. For example, they may know that in the past they gave Henry four weeks off to recover from a car accident, and whether they know that Jane is currently pregnant and about to ask for four weeks off, assuming she’s a new employee who doesn't have any FMLA entitlement, they would know, based on their past experience, that they would need to come up with some type of personal leave to cover Jane so that they were treating her the same way as they were treating Henry.
So it would be a mixture of hypothetical and past experience. And then, of course, just as supervisors get to know their employees and they know their personal situations, they will become aware of their family caregiving obligations. It might be through requests for leave. It might just be through casual conversation, and that also can inform them in looking at their policies.
ACTING CHAIRMAN ISHIMARU: Great, Ms. Calvert, the stigma issue that you brought up, I think, is quite compelling in these economic times, and I think it cuts across all of the work we do, whether employees will complain, will file charges of discrimination on whatever bases we cover at the EEOC for fear of losing their jobs or for fear of being a trouble maker. And I think that’s an important consideration for the EEOC to keep in mind as we go forward in issuing best practices guidances and other guidances we may come out with in the future, so that’s one of those issues that is hard to get to, I think. And as Mr. Norris points out, employers want to keep good employees. They tell me that consistently, and they want to know how they best can do that. And I am hopeful that this document can help employers find practices that have been successfully used by other companies.
Mr. Norris, I just want to clarify for the record that companies that are members of the EEAC are basically larger companies. I know generally, you don't tout who they are, but it would be fair to say that they are within the Fortune 500 as a general matter, would it not?
MR. NORRIS: Probably mostly in the Fortune 200 and 300.
ACTING CHAIRMAN ISHIMARU: Okay. So they are the big companies that everyone generally knows. Thank you.
Can one of the panel members talk about benefits? I know one of the issues of flexible workplaces is the whole notion of part-time people getting a proportional share of benefits. And in the health care debate that is one of these sort of overriding policy debates that the country grapples with, can employers effectively provide proportional representation of health care benefits? Does that work, in fact? Are people able to access this important benefit if they are working on a part-time basis?
MS. MINATELLI: Well, that’s a little bit of a tricky one. I will just start by saying that the issue of part-time parity, which I raised briefly, is a huge issue for women and caregivers, and the idea that a lot of part-time jobs come with absolutely no benefits and no kinds of support.
And so what part-time parity would do is make sure that people get at least a pro rata share that they are entitled to. And so for example, in a situation where -- this isn't exactly an example, but where health care is provided but at a certain cost to a full time employee, then it should be a proportional amount for the part-time worker.
Most companies tend to do kind of a group insurance, and I am not an expert on health insurance, so I don't know exactly how that would work, but it would seem to me that maybe there would be a small cost differential for covering someone who is part-time, and that part-time person could make up the cost differential or it might be in a group pool. It doesn't make much difference if you add one or two people who are part-time to the overall number. But that’s something that definitely should -- we would be very excited to have employers looking at and considering how do we ensure that part-time workers are not left high and dry when it comes to health care insurance.
DR. BOUSHEY: To add to that -- I mean, to just underscore, certain part-time workers are much less likely to get health care coverage, and often it is the case that the problem isn't just the employer, but it’s the health insurance company, that they have rules on threshold of how many hours an employee needs to be employed in order to be covered by the employer based plan.
Well, that right there is a significant challenge. In fact, the last firm I worked for, we wanted to cover our part-time workers and were told we could not do that. So we had to have people work a minimum number of hours in order to qualify, which was problematic for the firm, so one of the things that, I think, folks are really pushing for as a part of the health care reform is to make sure that employers have the flexibility to cover more workers with their insurance plan, so that is certainly something to get into the conversation.
ACTING CHAIRMAN ISHIMARU: Anyone else on the panel? No? Dr. Boushey, in your testimony you talked about the stimulus package creating or saving state and local government jobs, and the government sector generally will be a growth area, I would assume, over the next few years.
Are there any special tricks that state and local and the federal government should be thinking of when thinking about these issues involving caregiver discrimination?
DR. BOUSHEY: That’s an excellent question. So there's a couple of things. Certainly, state and local and federal workers have been not been hit by the recession nearly as much, although we have some layoffs around the country, but that sector continues to add workers each month so far. All this is, certainly, so far.
We are seeing a lot of state cutbacks right now, but there has been a lot of movement to make the federal government the sort of model employer for thinking about these issues. So for example, right now Congress is considering a bill that would provide paid parental leave for new parents in the federal workforce, which federal workers currently don't have. I know that there has been work done over the years in terms of flexibility in the federal workforce, so that is an area to be considering moving forward to say, hey, you know, we have an opportunity, especially with significant hiring as a part of the recovery package, to incorporate these. And the new administration, I know, is taking some of those issues seriously. So, hopefully, we will see some innovation for state -- for federal workers.
I think at the state level, I don't think we have seen nearly as much.
ACTING CHAIRMAN ISHIMARU: Thank you.
I think this discussion brings up the complexity of so many of these issues, and what I’m hopeful is that there will be a continuing discussion as policy is developed by the government generally with other government agencies.
I plan to share the information that comes out of this meeting and from our earlier guidance with the various offices who are interested, including the Secretary of Labor and the Secretary of Veterans Affairs, the Office of Personnel Management. Maybe you could hand carry that?
And I know President Obama has set up a number of groups at the White House, including the White House Task Force on Working Class Families and the White House Council on Women and Girls. We plan to share this information, so they know what we’re doing, and I hope we can have a continuing dialogue, because one of Commissioner Barker's concerns is that we may be overstepping what we do here. And certainly, that’s not my intention, but it’s a complex web, and you have to have the dialogue with other interested agencies. And because Department of Labor has Family Medical Leave implementation responsibilities, we need to be talking to them to make sure that they know what we’ve done and to provide them with information that may be helpful to their work in the future.
I want to thank the Panel for joining us today, very, very helpful.
I want to thank our friends in the Executive Secretariat for pulling this together, and let me note, too, that today is Administrative Professionals Day. So I want to thank our colleagues here at the EEOC who provide the valuable administrative support services to all of us, and we are very grateful for your efforts.
So again, I thank you all for coming. This guidance will be made available -- or not guidance, but this document will be made available. We hope to do some more in this. As Commissioner Earp pointed out, there are a lot of issues that we’re grappling with, and this is one of them, and I think this is a valuable issue that is worthy of the Commission's time. And I appreciate the panel's contributions to our work.
ACTING VICE CHAIR GRIFFIN: So moved.
COMMISSIONER EARP: Second.
ACTING CHAIRMAN ISHIMARU: Is there any discussion? All in favor say Aye.
ACTING CHAIRMAN ISHIMARU: Opposed? The ayes have it, the meeting is adjourned.
(Whereupon, the foregoing matter went off the record at 11:45 a.m.)