Focus on Family-Caregiver Discrimination Growing
While a steadily growing number of working Americans report they are caring for elderly and ailing parents, the number of employees claiming they were treated unequally because of their caregiver status rose by nearly 400 percent in recent years. What can HR do to ensure organizations avoid such discrimination claims?
By Kristen B. Frasch
With aging baby boomers still lingering in the workplace, a growing number of them caring for elderly and ailing parents, and with the federal government -- namely the U.S. Equal Opportunity Commission -- continuing to step up policing efforts against family and caregiver responsibility discrimination, attention to this segment of employment law is intensifying.
The latest indication of an increasing focus on family responsibility discrimination came in the form of a well-attended Jan. 24 webinar by Brentwood, Tenn.-based Business & Legal Resources titled "Family and Caregiver Responsibility Discrimination: Compliance Tips for Staying Off the EEOC's Radar." Moderator Martha J. Zackin, a partner with Boston-based Bello Welsh, says this form of discrimination is indeed "a growing issue," as is interest among employers in best protective practices.
Latest figures from The Center for WorkLife Law at the University of California Hastings College of the Law in San Francisco show more than 40 million people, about one in every eight Americans, are age 65 and older, and this number is projected to grow to an estimated 72 million, or one in five Americans, by 2030.
The Center's latest poll information also shows more than 35 percent of employees have elder-care responsibilities and one in 10 employees have caregiving responsibilities for both children and elderly relatives. Consider too, the Center's assessment that nearly 60 million Americans qualify as caregivers in some capacity, and the numbers working against employers start speaking for themselves.
As BLR's webinar announcement reads, "that's a staggering number of people whose needs as caregivers need to be taken into consideration in the workplace."
What's more, the number of employees claiming they were treated unequally because of their caregiver status rose by nearly 400 percent in recent years, according to the Center. The current number of FRD cases -- through the middle of 2013 -- in the Center's database sits at about 3,600, according to Cynthia Calvert, a senior adviser there and founder of Workforce 21C, a group that provides consulting and training to employers who want to prevent caregiver discrimination.
"I want to make an important distinction, though," she says. "These are cases that we know about because there has been a court decision or some media attention about them. So, it is not all the cases that have been filed; that number would be [even] larger." (The hot areas right now, Calvert adds, are pregnancy accommodation family leave for men, paternity leave in particular and elder care.)
And just how prevalent are rules and regulations prohibiting discrimination based on family responsibilities? Though there is no federal law in place, the EEOC has issued a guidance and subsequent list of best practices for employers to follow to ensure they're not running afoul of other laws. It has also upped its rhetoric of late about its intent to investigate employers' possible discriminatory practices under these other laws.
As the guidance reads, "there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment. The purpose of this  document is to assist investigators, employees and employers in assessing whether a particular employment decision affecting a caregiver might unlawfully discriminate on the basis of prohibited characteristics under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990."
Indeed, says Zackin, "caregiver responsibility is not a protected category under federal fair-employment-practice laws. Nevertheless, the EEOC has signaled an inclination to pursue claims for caregiver discrimination under the umbrella of other protected categories, such as sex and ethnicity/national origin."
Her advice for staying out of court? "Employers that focus on employees' specific, job-related qualifications," she says, "are better positioned to defend their practices, as are employers that follow appropriately strong EEO policies, investigate and act on complaints in a timely fashion, and provide appropriate training to managers and front-line supervisors" so adverse actions aren't taken against caregiving employees due to their requests for time off or other accommodations.
In addition to having no specific federal law governing caregiver discrimination, few states have statutes either. To date, Alaska and Connecticut are the only two, though the District of Columbia expressly prohibits FRD in employment and an executive order protects federal workers from discrimination based on "status as a parent." Other states have introduced bills, but none have been enacted.
Local authorities, on the other hand, have been far more active. According to Calvert, more than 80 cities and counties have laws prohibiting FRD, "and some allow employees to sue their employers for uncapped damages and attorney's fees."
Some of these include:
• In Florida -- Miami-Dade County, Monroe County, Palm Beach County, Key West and Tampa;
• In Maryland -- Montgomery, Howard and Prince George's counties;
• In Michigan -- Ann Arbor and Ypsilanti;
• In Minnesota -- St. Paul;
• In New York -- Westchester County and Ithaca;
• In Oregon -- Benton County, Corvallis, Eugene, Hillsboro and Portland; and
• In Pennsylvania -- Philadelphia and West Chester.
The most recent ordinance went into effect in San Francisco on Jan. 1, prohibiting discrimination based on "caregiver status," which is defined as being a primary contributor to the ongoing care of a child for whom the employee has assumed parental responsibility, a family member with a serious health condition or a parent over the age of 65. In San Francisco's case, aggrieved employees must pursue their claims through the Office of Labor Standards Enforcement, "which -- beginning in 2015 -- can file a claim in court seeking unlimited compensatory damages, liquidated damages, injunctive relief and attorney's fees," says Calvert.
Clearly, the momentum is growing.
So, too, is the sense that employers aren't discriminating out of maliciousness, necessarily, but because of thoughts and judgments they're not even aware they're making, Calvert says.
"Most family responsibilities discrimination arises because of unconscious biases about caregivers," she says. "Supervisors may assume, for example, that a mother of young children will not be committed to her job, a father who works flexibly to care for his children is not ambitious or that an employee who cares for his or her sick parent will not be dependable.
"These assumptions can cause the supervisors not to hire or promote caregivers, or to terminate them, even when they have records of good performance," she says. "Uprooting unconscious bias has to be a top priority for employers" through stepped-up training and communication efforts.
"Unconscious bias is a hot topic in the media right now in connection with advancing women and making workplaces more inclusive," says Calvert. It now must be on the FRD radar screen as well.