Employers On the Hook for Caregiver Discrimination

Employees are winning discrimination cases against their employees based on family care discrimination, which has increased by 269% in the last decade alone.  Of the lawsuits filed within that time frame, nearly $500 million has been paid out in verdicts and settlements in favor of an employee.

If you’re not familiar with it, caregiver discrimination, or family responsibilities discrimination, is a form of employment discrimination that’s based on an employee’s responsibility to care for family members. Obviously, a mother caring for a sick child is the most obvious case of caregiving responsibility, but many don’t know it also applies to caring for a sick parent or spouse with a disability.

The Equal Employment Opportunity Commission recently published reports that show at least 70% of U.S. households with children have all adults in the household in the workforce, which explains why the increase in caregiver discrimination cases.  Of that workforce, 46% are women and of those women, 81% have children. That’s a significant amount and it’s inevitable that, at some point in time, one of those parents will have to miss work to care for their child. At least 25% of families take care of aging relatives, while 10% take care of both aging relatives and children.

When you consider the fact that, at some point in time, most of us will have someone to take care of, whether it be a child, spouse or parent, employers should be careful with how they handle their employees’ family situations.

Obvious and Intention Discrimination Aren’t the Only Basis for Lawsuits

Discrimination in the workplace can come in many forms and can include:

• firing pregnant employees because they are pregnant or will take maternity leave,
• failing to promote an employee based on the fact that they are pregnant or have a young child at home,
• purposefully giving employees work schedules they know they cannot meet due to childcare reasons while giving other employees flexible schedules,
• fabricating work infractions or performance deficiencies, or
• otherwise penalizing an employee because they have legally taken time off to care for a family member.

Caregiver discrimination can be any adverse action taken against an employee because of their caregiving responsibilities. Caregiver discrimination doesn’t have to be as clear as firing a pregnant employee. 

According to a report written by Cynthia Calvert, senior advisor to the Center for WorkLife Law at the University of California’s Hastings College, discrimination can be as simple as a supervisor refusing to allow a pregnant employee to take a break as directed by her doctor.

What about a father who occasionally misses work to stay home to care for his child and is excluded from work meetings and subsequently punished for infractions others may commit without any repercussions? How about an employee who requests to miss work to take their parent to a doctor’s appointment and their request is denied?  It can be easy for an employer to commit caregiver discrimination without intending to do so and without knowing that their decisions are illegal.

Employees Can Hold Their Employers Accountable For Caregiver Discrimination

Caregiver discrimination or family care discrimination isn’t specifically spelled out within the Civil Rights Act, but it could fall under employment discrimination based on sex and an employee’s association with an individual with a disability. Some states have their own laws on the books to protect employees, but as stated above, caregiver discrimination isn’t specifically prohibited under federal law.

Employees will need to look to their specific state law for remedies available to them if they’ve been discriminated against. Massachusetts and Pennsylvania have tried to introduce measures that would strictly prohibit employment discrimination based on familial status, marital status, and family caregiver status, while Michigan and North Carolina are slowly introducing measures that suggest a change in the future.

Federal employees can contact the U.S. Office of Special Counsel for help.

Employers Need to Implement Proper Policies and Work with Employees

To help curb these types of lawsuits, companies need to make sure they have policies in place to act as a system of checks and balances for the policies they do have. Whether those policies be through their hiring practices, attendance policies, promotion policies, incentive pay and benefit standards, and leave policies, companies need to make sure they aren’t negatively impacting their employees.

The EEOC recommends companies have prevention programs in place that both educate and train management so they’re aware of the legal obligations impacting workers with caregiving responsibilities. Companies need to train managers on what constitutes family responsibilities discrimination and how to handle any complaints.

With the rise in caregiver discrimination lawsuits, if employers don’t begin to work with employees to accommodate their needs to care for a family member, it’s going to keep costing companies big. Besides the financial implications, employers risk the loss of loyal employees to companies that are willing to be more accommodating.