WSJ on Caregiver Discrimination

As noted in yesterday's post, the EEOC has just issued a Guidance on the Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.  Sue Shellenbarger provides a nice description of the Guidance in today's Wall Street Journal.  However, I have a quibble about one thing she says.

Ms. Shellenberger correctly points out that the new EEOC Guidance does not create a new protected class of parents or caregivers.  The next sentence, however, gives me pause: “It could be permissible, for example, for a company to refuse to hire parents – as long as the rule is sex-blind, affecting fathers and mothers equally.”

This sentence seems to conflate disparate treatment (the “sex-blind” part of the sentence) and disparate impact (the “affecting fathers and mothers equally” part of the sentence).  A facially neutral “no parents” rule would pass muster under the disparate treatment theory.  It’s hard to imagine, however,  how such a rule would pass the disparate impact test.  Empirically: (1) While paternity is often in doubt, maternity is not, so the rule will exclude all mothers but only a subset of fathers (fathers whose paternity is certain or acknowledged).  (2) While it’s usually fairly obvious when a woman is a few months from becoming a mom, there’s no such physical change for men about to become a dad, so women who get pregnant on the job are likely to get fired while men who are about to become fathers may be able to hide that fact and retain their jobs.  (3) When parents are separated or divorced or never together to begin with, the children are much more likely to live with mom than with dad.  If the employment rule is “no parents with childcare responsibilities,” the rule will exclude more women than men because women are more likely to be the residential parent.  Even if the rule is simply “no parents,” it’s much easier for a noncustodial father to hide his fatherhood than it is for a custodial mother to hide her motherhood.

So, while technically it’s correct to say that a “no parents” rule would be permissible if the rule affects mothers and fathers equally, it is very unlikely that such a rule would ever affect mothers and fathers equally.

rb