Let’s set the scene: You’re interviewing Anne for a sales position and it’s going well. Anne is the most qualified applicant you’ve met and she seems like a real go-getter. You anticipate that you will offer her the job. As you’re wrapping up, Anne asks about the required hours that were listed in the job description: 9am – 5pm M-F with occasional need to stay later if necessary.
Anne tells you that she’s more than willing to stay late on occasion, but will need advance notice in order to arrange childcare for her 3 children under 10 years old. You tell Anne that due to the nature of the job, advance notice isn’t always possible. You now know that Anne has children and that her childcare obligations could affect her ability to do the job. What are your legal obligations and where do you go from here?
Let’s get the most common misconception out of the way first; it doesn’t matter that Anne volunteered (and that you didn’t ask) whether she had children. Discrimination laws don’t prohibit employers from learning protected information. They prohibit employers from using protected information as a basis for an adverse employment decision.
So is parental status a protected characteristic? Not directly. But there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment based on sex under Title VII. For example, an employer cannot hire men with preschool age children but refuse to hire women with preschool age children. (Phillips v. Martin Marietta Corp. (U.S. 1971)). This is discrimination based on a person’s sex. But because Title VII does not prohibit discrimination based solely on parental status, an employer does not violate the disparate treatment proscription if it treats mothers and fathers in a similarly unfavorable manner compared to childless workers. In other words, employers can discriminate against parents across the board, but not against only mothers or only fathers.
There is also an important distinction between sex based assumptions about work performance (i.e., female caregivers should not, will not, or cannot be committed to their jobs) and actual, specific work performance of a particular employee. Employment decisions that are based on an employee’s actual work performance, rather than perceived inability or stereotypes, do not generally violate Title VII, even if an employee’s unsatisfactory work performance is attributable to caregiving responsibilities. For example, an employer can terminate an employee who misses work frequently because of difficulty in obtaining childcare, as long as it treats other male and female employees comparably for the same infraction.
In the case of Anne, you as the employer have every right to set the work schedules of your employees. But if you choose not to hire her because of admitted childcare restrictions, just be sure that you treat all other applicants and employees with similar issues, both male and female, the same way.