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While finding childcare may be challenging for your employees, requiring that they do so is not discrimination, according to a September 2021 court ruling.

In Battino v. Redi-Carpet Sales of Utah, LLC, an office manager who was working from home following the birth of her child was terminated after the employer determined that “significant operational issues” in the office required her immediate return. However, she could not comply because she did not have immediate childcare available.

The office manager sued, alleging discrimination and retaliation in violation of Title VII.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex, which includes pregnancy, childbirth, and related medical conditions. The U.S. Court of Appeals for the Tenth Circuit explained, however, that those are all physical conditions. Childcare is not.

As for her retaliation claim, the manager asserted that the employer retaliated against her protected activity of becoming pregnant and requiring leave, in violation of Title VII. Here the Tenth Circuit explained, “protected activity” under Title VII is limited to opposing discrimination or participating in such opposition.

If the employee had experienced pregnancy- or childbirth-related disabilities, she might have been entitled to reasonable accommodations, including leave, under the Americans with Disabilities Act, and been protected from retaliation on the basis of such need for accommodation.

Caregivers and discrimination

While this case offers some clarification on the limits of Title VII, like protections with regard to pregnancy, childbirth, and related medical conditions, employers should still be mindful that the Equal Employment Opportunity Commission (EEOC) has issued guidance that explains there are circumstances in which adverse treatment of caregivers can constitute discrimination in violation of Title VII.

For example, sex-based disparate treatment of female caregivers, focusing on sex-based stereotypes would likely be considered discrimination. As would sex-based disparate treatment of male caregivers, such as the denial of childcare leave that is available to female workers. Disparate treatment of women of color who have caregiving responsibilities would be considered discrimination under Title VII, as would disparate treatment of a worker with caregiving responsibilities for a child with a disability.

Disparate treatment is an intentional practice where members of a protected class are treated differently from other employees.