Balancing work and family is becoming increasingly difficult. Workers are not only responsible for caring for their own children but many are now the primary caretakers of aging parents. It is also not uncommon for grandparents to care for grandchildren or for an aunt or uncle to care for a niece or nephew. The U.S. Equal Employment Opportunity Commission recently held a public meeting that addressed the problems of workers with caregiving responsibilities. During this meeting, the EEOC said discrimination against caregivers is an area of vital concern. In addition, multiple panelists told the Commission about numerous cases of caregiver or “family responsibility” discrimination in the workplace.
According to a report prepared by the Center for WorkLife Law, approximately four states and 63 local governments have adopted laws that prohibit discrimination against workers with caregiving responsibilities. However, there is currently no federal or California law prohibiting discrimination or retaliation against caregivers. Two attempts were made by the California Legislature to add “familial status” as a protected class under the Fair Employment and Housing Act. Both attempts were unsuccessful. Had the law passed, it would have protected employees with caregiver responsibilities from discrimination.
Although being a caregiver is not a protected class under federal or California law, the EEOC has recognized circumstances in which discrimination against caregivers might constitute unlawful disparate treatment under Title VII of the Civil Rights Act of 1964. For example, stereotypes based on gender may give rise to discrimination claims based on sex. Such discriminatory conduct can include denying a female employee a promotion because the employer assumes she will want to spend time with her children instead of at work. Another example of prohibited conduct based on sex is allowing a female employee, but not a male, to leave early twice a week to care for an elderly parent.
Stereotyping of caregivers may also constitute discrimination under the American with Disabilities Act of 1990. The ADA prohibits discrimination against an employee who is associated with an individual with a disability such as a child, spouse or parent. For example, a job applicant may not be denied a position because the employer improperly assumes that the applicant’s caregiving responsibilities for a child with a disability will negatively affect his or her attendance and work performance. Under this scenario, the applicant would have a strong argument that the employer violated the ADA by refusing to hire someone because of his or her association with an individual with a disability.
In addition to Title VII and the ADA, employees who believe they have been harassed, discriminated or retaliated against because of their caregiver responsibilities may also have claims under the Equal Pay Act, Pregnancy Discrimination Act, California Family Rights Act and Family Medical Leave Act. According to the Center for WorkLife Law, discrimination lawsuits relating to caregiving responsibilities have been filed in every state in the country. Also, a significant increase has been noted in the number of cases relating to workers with elder care responsibilities.
Given the EEOC’s recent attention to workers with caregiving responsibilities, here are some tips for employers to consider when dealing with employees or applicants who are caregivers:
- Focus on job qualifications when recruiting, hiring and promoting employees.
- Review policies and practices relating to compensation and preparation of performance evaluations to ensure employees are not being penalized for taking protected leave or time off to engage in caregiving.
- Train supervisors and managers about treatment of workers with caregiving responsibilities.
- Consider flexible work arrangements and allow employees to use accrued leave time such as sick, vacation or compensatory time off to perform caregiving functions.
- Promptly investigate complaints of caregiver discrimination.
Finally, effective communication is often the key to managing employees with caregiving responsibilities successfully. Thus, employers should communicate with employees about any issues that may arise from the employees’ caregiving responsibilities. For example, if an employee has an excessive amount of absences or is arriving to work late and/or is leaving work early because of his or her caregiving responsibilities, the employer should speak to the employee about the possibility of working a flexible schedule, telecommuting, or the need to take intermittent leave.