SHRM HR Magazine - September/October 2018

 A woman was instructed to accept a demotion or go on leave because she couldn’t do the job of co-director while pregnant.

These are egregious examples; caregiver discrimination is often much subtler, like when a manager gives better assignments to those without known family responsibilities. A supervisor’s actions can still be discriminatory, though well-intentioned. That’s why HR needs to be on the lookout for risky rules and practices.

Just as the #Me Too movement has been a wake-up call for business leaders to do more to address and prevent sexual harassment, the rise in these caregiver cases—and a high success rate for the plaintifs—should “give employers the impetus to investigate their workplaces and address family responsibilities discrimination before it damages their bottom line and before they face lawsuits,” says attorney Cynthia Thomas Calvert, a lawyer and HR consultant in Maryland and an expert in this area of the law.

IS THAT LEGAL?

Most working people will tend to a family member’s health at some point during their careers. If HR and supervisors aren’t careful about how they manage those employees, the result can be costly litigation, low morale and bad press, among other problems.

Employees with family responsibilities are not explicitly covered under federal anti-discrimination laws. But some cities and states have enacted legislation that makes caregivers a protected class. These are Alaska, Minnesota, New York state, New York City, New Jersey and Washington, D.C. Moreover, employers with policies and practices that show or seem to show bias against caregivers, or bias against employees who an employer presumes will have the role of caregiver in the future, may still violate anti-discrimination laws.

“Many HR professionals do not know what family responsibilities discrimination is, or they have trouble spotting it, so they are blindsided when they get sued,” Calvert says.

Company leaders who are on the receiving end of caregiver discrimination lawsuits are typically accused of violating major civil rights statutes and other laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act Amendments Act, the Pregnancy Discrimination Act, the Equal Pay Act, the Family and Medical Leave Act, or the Employee Retirement Income Security Act.

Several risky, and perhaps too-common, practices could violate federal statutes, including:

 Treating women without caregiving responsibilities more favorably than those who have them.

 Asking female applicants and employees, but not men, about their child care responsibilities.

 Retaliating against employees for seeking leave under the federal Family and Medical Leave Act.

 Providing reasonable accommodations for other temporary medical conditions but not for pregnancy.

Despite eforts by the Equal Employment Opportunity Commission (EEOC) to convince HR and other business leaders to provide better training to managers and take other

5 TIPS FOR AVOIDING A CAREGIVER
COMPLAINT

Most employers are not legally required to provide paid leave or other benefits to help caregivers. But be careful not to make decisions that can violate civil rights laws.

Here are some tips for avoiding a lawsuit from Tom Spiggle, an employment attorney in Arlington, Va., who has represented workers in family responsibilities lawsuits. Had some employers taken this advice, he says, they never would have had to meet him in court.

1. WORK WITH LEGAL COUNSEL to develop, communicate and enforce a strong equal employment opportunity policy that clearly addresses the types of conduct that might constitute caregiver discrimination. “When there is no policy or procedure, there is risk. If you just leave things up to line managers, there’s a lot of opportunity for screw-ups,” Spiggle says.

2. TRAIN MANAGERS ON GENDER STEREOTYPING, which can violate Title VII of the Civil Rights Act of 1964 and other laws and is a key component of many caregiver lawsuits. An example of this is “when a manager applies a double standard, such as denying leave to a man who needs time off to take care of a child because he has a wife,” he says.

3. EMPHASIZE THE FAMILY AND MEDICAL LEAVE AC T (FMLA) during training. Given the complexity of the law—and the risk of litigation—make sure managers know they must talk to HR before answering any employee questions or making any decisions surrounding a subordinate’s FMLA leave.

4. CONSIDER HIRING A CONSULTANT who is an expert on unconscious bias to train all workers.

5. AVOID PATERNALISTIC POLICIES regarding work and time off. Managers aren’t in a position to determine what a pregnant employee can and cannot do; doing so may violate the Pregnancy Discrimination Act, Title VII or other laws.