Wrestling with Caregiving Woes

As more workers take on caregiving duties, experts urge HR professionals to revisit leave policies and help eliminate the (often unconscious) biases regarding these workers.

Monday, October 10, 2016
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In a statement summarizing new research from the Center of WorkLife Law at the University of California, Hastings College of Law, the center's founding director, Joan C. Williams, reckons that some employers "still aren't getting it" when it comes to making sure they aren't discriminating against employees with family caregiving responsibilities.

When you consider the study's findings, it's hard to argue with her.

The report, Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016, analyzed 4,400 family responsibilities discrimination cases filed from 2006 to 2015. Report author Cynthia Thomas Calvert looked at claims alleging discrimination based on an employee's status as a pregnant woman, mother, father or a caregiver. She saw a 269-percent increase in the number of such cases filed in that 10-year span, compared to the prior decade.

And that's not the only eye-popping statistic to emerge from the study. For example, cases involving elder care have increased 650 percent in the last 10 years, while pregnancy accommodation cases have gone up by 315 percent in that time. And, while the number of claims remains small, suits in which an employer is alleged to have denied accommodations or discriminated against an employee because she was breastfeeding or needed to express milk during the workday have risen by 800 percent.

In addition, male employees have brought 55 percent of spousal-care cases, 39 percent of elder-care cases, 38 percent of Family and Medical Leave Act cases and 28 percent of child-care cases, according to the report, which also notes that FRD claims have been brought in every U.S. state.

The same research finds workers winning 67 percent of the FRD claims that went to trial between 2006 and 2015.

Calvert, a senior adviser to the Center for WorkLife Law, attributes these numbers to a corporate environment that hasn't quite kept pace with an evolving workforce.

For example, "more employees are caring for family members, more women are working later into their pregnancies, and more men are providing child care and elder care," says Calvert.

The number of disabling conditions such as diabetes, autism and autoimmune diseases has also increased in recent years, she says, noting that amendments to the Americans with Disabilities Act have broadened the interpretation of "disability" as well.

"The workforce has been changing over the last several decades," says Calvert, "and now more families have all adults in the paid workforce."

In some ways and in some organizations, however, the workplace "has changed little" in that time, she says. "Schedules, norms and ways of working all assume that employees have someone at home taking care of family matters, like it used to be in the 1960s, and employees are expected to prioritize work above all else," she adds. "That clash between what the workplace wants and what the workforce can give creates frustrations [and possibly] family responsibilities discrimination."

Overall, "there isn't a lot of good news for employers" to be found in this report, says Calvert, "because all indications are that the number of employees providing care to family members will continue to grow and there are few indications that workplace expectations will change."

Reappraising Leave Policies

The number of FRD cases, however, doesn't have to keep increasing, some experts say.

Employers first need to evaluate all leave policies, "not just medical-leave policies," says Christina Stoneburner, a Roseland, N.J.-based partner at Fox Rothschild and a member of the firm's labor and employment department.

"Likely areas of concern are leave and light-duty policies," says Stoneburner. "Employees ... may argue that employees who simply need a personal leave are given better benefits than someone who might need to take FMLA leave to care for a family member or a pregnant employee who may need leave due to a pregnancy," for instance.

Supervisors must also receive training on how to handle employee requests for leave to care for a family member who is disabled, she says.

"This is true even in companies that are not subject to the FMLA," adds Stoneburner. "Although an employer may not be obligated to provide leave in such situations, employers can be exposed to liability where supervisors make negative comments about the fact that an employee's family member is disabled or where they take action against an employee because they are afraid the employee will ask for accommodations."

Revisiting leave policies and providing appropriate training are indeed critical to help supervisors recognize the dangers of FRD -- and help the organization avoid costly litigation, says David Rapuano, a Haddonfield, N.J.-based partner at Archer & Greiner.

In order for training to achieve those goals, however, employers and HR must first address "the flawed assumptions and prejudices that underlie and precipitate many successful [FRD] claims," says Rapuano.

For example, he says, "managers and supervisors often fail to focus on actual performance -- actual work produced -- but look at the much cruder and often inaccurate metric of 'face time' or 'total availability' for work." Viewed through that lens, an employee with family responsibilities "will appear to be less productive than one who is always present, even when actual production is equal," he adds.

Some of the most common misconceptions surrounding caregivers are that they "are not committed to their jobs and are not as competent, ambitious or dependable as non-caregivers," adds Calvert. "Supervisors rarely recognize that they have these biases, or that these biases are affecting how they perceive the performance of caregivers, the assignments they give them and whether they discipline them," for instance.

Such perceptions may lead some employees to "hide caregiving responsibilities," says Kevin Sypniewski, founder and CEO of Ramon, Calif.-based Agis Networks Inc.

Workers may be hesitant to inform managers of these duties "because they think [their supervisors] are going to start wondering why they're leaving early some days, for example," says Sypniewski. "So people don't talk about it. When you find your mother with Alzheimer's disease out wandering the neighborhood, you don't announce that."

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Generational factors also come into play for some workers, he adds.

"Let's say you have a 50-year-old employee who reports to a 35-year-old, and that employee is a caregiver for an elderly parent," says Sypniewski. "I don't think a 35-year-old is going to have any understanding of that situation. His or her parents are roughly this employee's age.

"So the first thing that employees, managers, HR -- everyone -- has to do is start talking about caregiving as a normal thing, and make sure everyone understands that, yes, FMLA can be taken for this, and there are leave policies to address caregiving."

Providing Support

New York-based advisory services provider Deloitte wants to make sure that its leave policies are comprehensive and inclusive for all employees with caregiving responsibilities.

Earlier this year, the firm conducted a parental leave survey that found 88 percent of 1,000 employed adults saying they would value a broader paid-leave policy that includes family care beyond parental leave.

Deloitte took these results to heart. In September, the firm launched a new family leave program that affords employees up to 16 weeks of fully paid leave to support a range of life events affecting them and their families -- from the parent caring for a newborn child to those caring for a spouse or significant other, or supporting aging parents. In addition, the new program provides mothers who give birth to a child with eligibility for up to six months of paid time off, when factoring in short-term disability for childbirth.

"Our talent strategy is centered around our ability to create a leadership culture that is focused on the development and well-being of our professionals," says Mike Preston, chief people officer at Deloitte. "Leading-edge programs for our people, reinforced by daily interactions and conversations at the team level, instill a culture of support and well-being."

The managers supporting caregiving employees and their development must "take a long-term view of each employee's career," says Calvert. HR should also stress to managers that supporting caregiving employees actually fosters engagement and loyalty, she says, which leads to increased retention -- which, in turn, leads to better customer relationships and service, greater productivity and lower costs.

"HR can reinforce these messages and, perhaps more importantly, play a proactive role in recognizing and stopping FRD," says Calvert, adding that HR professionals must also understand how and why FRD arises, "so they can respond appropriately to employee complaints, conduct effective investigations and evaluate evidence appropriately."

Putting a stop to this type of discrimination requires knowing the likely triggers -- such as a pregnancy, the need to care for a family member, requesting or returning from leave, or appealing for a flexible work schedule, she says.

Ultimately, HR leaders must also remain vigilant "to make sure that employees are not suddenly being given negative evaluations that are not supported by their performance, having workplace rules such as punctuality and attendance applied to them rigidly while the rules are applied leniently to others, [and facing] unjustified increases in quotas, demotions or terminations and so on."


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