Read Carefully to Avoid Caregiver Discrimination

Did you know that:

  • 90.7 % of families with children under 18 have at least one working parent
  • 1 in 10 workers cares for both children and an elderly relative 

It's well documented that most of that burden falls on women who continue to serve as the primary caregivers for children and sick or disabled relatives.

The result is that because of these responsibilities, women have suffered widespread discrimination in employment for as long as they have been working.

That's why it was really good news last week when the U.S. Equal Employment Opportunity Commission (EEOC)  issued a document on best practices to avoid discrimination against workers with caregiving responsibilities.

The Work Life Law Center at UC  Hastings College of the Law  describes "caregivers discrimination"  this way:

Family Responsibilities Discrimination (FRD) is employment discrimination against workers based on their family caregiving responsibilities. Pregnant women, mothers and fathers of young children, and employees with aging parents or sick spouses or partners may encounter FRD.

They may be rejected for hire, passed over for promotion, demoted, harassed, or terminated -- despite good performance -- simply because their employers make personnel decisions based on stereotypical notions of how they will or should act given their family responsibilities.

The purpose of the new EEOC  document is to educate employers about what caregiver discrimination is, how it is manifested, and how it can be minimized or avoided. It also illuminates the not-so-obvious fact that men are victims too.

The report includes some good examples of flexible workplace policies and their proven benefit to both employees and employers.  Sue Shellenbarger's Wall Street Journal article on some of those programs is referenced in the report and is an interesting read.

The EEOC report also includes helpful examples of what this kind of discrimination looks like and here are a few:

Common unlawful stereotypes

  • assuming that female workers who work part-time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees
  • assuming that male workers do not, or should not, have significant caregiving responsibilities
  • assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work
  •  assuming that female workers who are caregivers are less capable than other workers
  •  assuming that pregnant workers are less reliable than other workers. 

 Unlawful conduct that results from the bias

  • asking female applicants and employees, but not male applicants and employees, about their child care responsibilities
  • making stereotypical comments about pregnant workers or female caregivers
  • treating female workers without caregiving responsibilities more favorably than female caregivers
  • steering women with caregiving responsibilities to less prestigious or lower-paid positions;
  • denying male workers’, but not female workers’, requests for leave related to caregiving responsibilities

Just to be clear, while caregiver discrimination has not been around as a legal concept for very long, it is not just theoretical.   Here's an example of some of the cases where caregiver discrimination has appeared:

Sheehan v. Dolan, a case in which an accounts manager and mother of three was told ,"hopefully this will give you some time to spend with your children," when she was terminated.

Santiago-Ramos v. Centennial P.R. Wireless Corp, a case in which a finance director was asked:

  • how she manged to juggle work, child care and marriage
  • how her husband managed since she wasn't home to cook for him
  • how she could do her job after the birth of her second child

Gallina v. Mintz,  a case in which an attorney was ordered to decide whether she wanted to be "a successful mommy or a successful lawyer."

Chadwick v. Wellpoint, a case I wrote about a few weeks ago  in which a woman with four children was denied a promotion by her female supervisor who said:

It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you just have a lot on your plate right now.

Knussman v. Maryland a case in which a state trooper,  who asked for leave to take care of his sick wife and newborn baby, was told that he could only qualify as the primary caregiver if his wife was "in a coma or dead."

While these snippets may seem sound like blatant examples of discrimination, I can assure you that these cases are extremely complex, difficult to litigate and hard to win. Because there is just not very much established law on this issue, the cases often turn on whether the particular judge views the case as one of gender discrimination or not.

It gets particularly complicated when the person who made the discriminatory decision was also a woman as happened in the Chadwick case. It was indeed a woman who denied the promotion to Laurie Chadwick because "she had too much on her plate" --  not a man.

What makes it even more complicated is that there is no specific federal law which prohibits FRD or "caregivers' discrimination." 

One article in the Vermont Bar Journal points out that there are seventeen documented theories under which these cases have been brought  including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, and other state and federal laws.

That's why the education to employers about gender bias and gender stereotyping is so important, and why this report is so significant.

Some of my fellow bloggers have written good summaries about the new  guidance manual put out by the EEOC including the Delaware Employment Law Blog, the Ohio Employer's Law Blog and the Connecticut Employment Law Blog and I am glad they did.

I was surprised that some think there was nothing groundbreaking about the report.  I guess I have a different take on it.

As a working mother for many years in an all male environment, and as a practitioner with a thirty year perspective of representing women in the workplace,  I think it's monumental that the government is bringing clarity to the issue of caregiver discrimination.

People who have to deal with this kind of bias, or with with the conflict of taking care of their loved ones and being treated unfairly in the workplace because of it,  need all the help that they can get. No doubt, the support of  the federal government is a huge help.

It's also a big help to employers to have the best practices guide on caregivers' discrimination available as a resource.  I hope they read it carefully.

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Employee Rights Post - May 7, 2009 3:10 AM
I love the decision of Gerving v. Opbiz, LLC which was decided by the Ninth Circuit a few days ago. Thanks to mmmglawblog for pointing it out. It’s a great example of “caregiver discrimination” about which the EEOC issued a...
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