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
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