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