Caregiver discrimination lawsuits are on the rise: Are you in EEOC compliance?
Workplace discrimination against caregivers persists due to both conscious and unconscious bias,
For many employers, caregivers remain invisible, even though one in six people in the workforce are caregivers at any given time. Because of a fear that it will impact their job or career, more than 50% of caregivers do not report their family challenges to their employer. On average, these challenges cause family caregivers to spend an additional 23 hours per week caring for their loved one, on top of work and other responsibilities. The extra time required to care on the home front often has a significant impact on the work front, especially when it comes to retention and recruitment. For example, 41% of working Americans reduce their work hours to accommodate their caregiving responsibilities and 13% have resigned from their jobs.
The impact on both employees (and their employers) doesn’t end there, however. The 50% of caregivers who do disclose their caregiving status at work too often face discrimination because of a pervasive stigma that caregivers cannot meet their job responsibilities. After all, what employer doesn’t want to hire “ideal” workers or have high expectations about their performance—individuals who always show up on time, have no restrictions on the hours they can work, and don’t take unpredictable time off.
Related: EEOC turns its focus to caregiver discrimination rules
Because of both conscious and unconscious bias, these expectations can change when an employer becomes aware of a worker’s additional role as a caregiver. Some managers have strong, if misguided, views—and make decisions accordingly—that women should focus on their kids over career, or that men shouldn’t take parental leave to bond with their newborn.
Still other managers, without even realizing it—or because they think they are being helpful—might reassign a task, or avoid giving someone a more time-consuming, but higher-profile, project because that person is a caregiver. As a result, over the past two decades, many employers have found themselves increasingly on the receiving end of lawsuits based on claims of family responsibilities discrimination (FRD).
The COVID-19 pandemic has only made matters worse with its abrupt changes, quick adjustments, and vastly changed circumstances for employees who are caregivers and their employers. Fortunately, the U.S. Equal Employment Opportunity Commission released earlier this year supplemental guidance that (a) reminds employers of the range of laws that continue to protect employees from discrimination at work and (b)details how the COVID-19 pandemic impacts employees who are caregiving, where pandemic-related employment discrimination could occur, and how to avoid it.
Compliance is table stakes
Specifically, FRD is employment discrimination because of an employee’s caregiving obligations. Someone can suffer an adverse employment action, like not being offered a promotion or receiving a poor performance review, based on pregnancy, parenthood, caring for family members with disabilities, or caring for a sick spouse or aging family member. The COVID-19 pandemic and its inherent challenges have created new situations (e.g., unexpected quarantines, schools closing on short notice, reluctance to return to work because of high-risk family members) that employers must navigate to ensure that working caregivers do not experience discrimination.
While federal law does not recognize caregivers as a protected class and there is currently no federal law that specifically prohibits employment discrimination based on caregiving status, there are several laws that determine how employers may and may not treat the family caregivers in their employ. For instance, Title VII of the Civil Rights Act requires that employers offer modified assignments or schedules to employees who are temporarily unable to perform duties because of pregnancy or childbirth if they also offer those types of assignments to other employees temporarily unable to perform all their job duties, such as those recovering from COVID-19.
The Family and Medical Leave Act (FMLA) impacts employers with more than 50 employees, and requires employers to provide 12 weeks of unpaid leave for an employee to care for a newborn, adopted or foster child; a family member with a medical condition like COVID-19; or for their own medical condition.
The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 provide protections for an employee taking care of a child, family member, or member of their household who has a disability. For example, under the ADA, it is unlawful for an employer to refuse an employee’s request for unpaid leave to take care of a parent with long COVID while approving leave for other employees needing to handle other responsibilities.
Several states, including New York, Minnesota, and Alaska, and over ninety local jurisdictions, such as Boston, Chicago, and Philadelphia, have regulations addressing unlawful discrimination based on a person’s status as a caregiver. Most cover discrimination based on familial or parental status caring for children, and many also prohibit discrimination against those employees caring for elderly parents or sick spouses.
Establish and practice a culture of caring
It’s key for human resource professionals to understand the employment discrimination laws at federal, state, and local levels so they can protect their employees and avoid unnecessary lawsuits. But just as important is moving beyond ensuring compulsory compliance to creating a culture of caring. There are multiple avenues that contribute to a workplace culture that supports caregivers.
Start by building awareness of what issues caregivers face and include caregiving support as part of a complete set of wellbeing benefits. Since many caregiving employees will not self-identify, it is critical to provide family-friendly benefits and programs to all corners of the organization, so those who need it can take advantage of it despite wishing to remain anonymous about their status as a caregiver.
Second, consider building out a robust training program for managers that includes a discussion of what Family Responsibility Discrimination looks like, how to protect caregivers, and how to minimize unconscious bias.
Lastly, adopt caregiver-friendly corporate policies, including an anti-discrimination policy that explicitly includes caregivers and reviewing through a caregiving lens other policies about pregnancy, attendance, flexible work, discipline and termination.
Through a stronger awareness of employee rights, a genuine caring culture, and a deeper adoption of family-friendly tools and benefits, employers can not only avoid litigation, but they can create a compassionate, safe work environment where caregivers can thrive and bring their much-needed talents to the world.
Carolyn Romano, JD, is vice president of product at Torchlight, and Aimee Gindin, MSCP, is head of marketing and strategy.
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