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Caregiver Discrimination

By May 20, 2010Blog, Employment Law

At a recent gathering of about 60 Human Resources professionals in Northern California, most in the room reported that they had never heard of “Caregiver Discrimination”. Any time an employer makes an assumption about what an employee can or will do based on his or her role as a caregiver, and that assumption leads to an adverse employment action, caregiver discrimination may have occurred.

Examples of this type of discrimination in the workplace setting include denying a father leave time after the birth of his child even though a female employee would be approved for the leave, or denying an employee the promotion she deserves because she had a second child, or terminating an employee because he took time off to be with his dying parent. Caregiver discrimination is not specifically prohibited by a specific federal or state law, so employees’ claims are being brought as gender discrimination lawsuits, or lawsuits alleging the employer failed to accommodate a legally required leave of absence. For an overview on Caregiver Discrimination, click here.  The U.S. Equal Employment Opportunity Commission issued guidelines to address this type of discrimination and provide practical tips for employers to prevent it. Those guidelines and best practices are available online. 

It’s interesting that such important information isn’t getting to the Human Resources professionals on the front line, even though employment attorneys in public and private sector jobs know this type of discrimination is a real threat to companies, and is a “hot” employment topic for 2010. The American Bar Association Journal’s May 2010 issue includes a warning about caregiver discrimination claims titled “A New Minefield”, and quotes one employment attorney who stated that this is a “percolating area of the law.”

The Center for WorkLife Law recently issued a new report on the rising tide of lawsuits stemming from caregiver discrimination claims: Family Responsibilities Discrimination: Litigation Update 2010.
The report makes it clear that the modern workplace doesn’t fit with the historical notion that a dedicated employee is one who is available around the clock, and never has family obligations. In fact, more employees than ever before are faced with childcare and elder care issues, no matter their gender. In most American households today, 70% of the adults in the home work outside the home. The report also shows that while employment discrimination claims have been decreasing over the last several years, caregiver discrimination suits have been on a rapid rise across the country, and can lead to multi-million dollar judgments against employers.

There are three typical triggers that cause an employer to run afoul of the law, according to The Center for WorkLife Law’s report. In the first scenario, an employee may have a flexible work arrangement with the existing supervisor, but when the new supervisor is brought in and tasked with reducing overhead and increasing performance, employees with caregiver responsibilities are targeted for discipline or termination first. The second recurring scenario occurs when a woman has a second child. She may not have faced discrimination when she had her first, but once the supervisor knows a second child is on the way, women report (and make claims alleging that) they were urged to stay home, sometimes via termination. Finally, employees report they were unlawfully denied leave to care for an elderly parent. More and more employees are faced with elder care issues as their parents live longer, and they may be entitled to leave to care for an ill or dying parent. Denial of the leave, in some cases, will be unlawful.

Employers should ensure their supervisors know that employees should not be treated differently based on assumptions about their caregiving
responsibilities. If arbitrary decisions are made, and the employer can’t show the decision was driven by business needs, rather than a discriminatory motive, the risk of liability dramatically increases. Employers should review the EEOC’s list of best practices, or consult legal counsel to ensure all supervisors know how to manage the workforce without discriminating and opening the door to costly legal claims.

Erin L. McDermit, Employment Group