Published in Business NH Magazine (9/21/2016)
If your employees ask for time off to care for a family member, you may want to think twice before saying no or giving them a hard time without a good reason.
According to a report by Cynthia Thomas Calvert of the Center for WorkLife Law at the University of California’s Hastings College of Law, the number of cases alleging family responsibilities discrimination has increased 269 percent over the last decade resulting in nearly $500 million paid out in verdicts and settlements.
In May 2007, the Equal Employment Opportunity Commission (EEOC) issued guidance on “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities”. The comprehensive guidance addressed issues such as sex-based disparate treatment of female caregivers as compared with male caregivers, unlawful gender role stereotyping of working women and numerous issues which are at play in the workplace ranging from work-family conflicts to retaliation.
The EEOC has issued so many guidance documents since then, on issues ranging from religious accommodation to pregnancy discrimination, that this one may have gotten lost in the shuffle. Recently, however, it is getting some new attention as more cases by caregivers have been filed and adjudicated.
The Center for WorkLife Law focuses on advocacy efforts to support employees and states clearly on its website that it “seeks to jumpstart the stalled gender revolution by focusing …on a few initiatives that hold the promise of producing concrete social or institutional change…” The organization has an agenda and is not shy about promoting it. It also takes credit for founding the new legal theory of FRD, a theory which obviously got the attention of the EEOC leading to the guidance.
The report cites additional interesting statistics:
- Pregnancy discrimination claims are still by far the most common and continue to increase despite the fact that pregnancy discrimination has been illegal since 1978.
- Family responsibilities discrimination claims filed by men have increased exponentially, and men account for 25% of the calls to the Center’s hotline.
- Breastfeeding cases have increased 800%.
The Right to Care
Despite the fact that there is no federal law specifically protecting the rights of caregivers, employees have been successful in winning cases rooted in other recognized legal theories such as gender and disability discrimination, and some have been men.
One father settled a case against his employer who refused to allow him to work from home to care for his premature son. His suit alleged that mothers had been allowed to do so, and he was able to argue gender discrimination.
A female police officer requested to be relieved from patrol duties while she was breastfeeding because she was unable to wear a bulletproof vest. The court considering the matter held that breastfeeding was a pregnancy-related medical condition and allowed the case to proceed under the Pregnancy Discrimination Act.
Employees have also filed claims under the Americans with Disabilities Act alleging that they were treated less favorably by their employers due to the need to care for a disabled family member. On this theory of “associational discrimination” an individual could, for example, argue that he was not hired because his wife is disabled, and the prospective employer concluded that his need to care for her might impact his work performance and attendance.
Employer Guidance
The American workplace has changed as has the American family dynamic. More individuals during their career will be called upon to provide care to children, grandchildren, spouses and parents– sometimes to more than one at the same time. Although men are participating more in providing such care, women still primarily carry that responsibility.
Workers of all ages are seeking, and even demanding, more workplace flexibility, and some states are passing legislation to require employers to offer it. Vermont has had a statute for more than a year which requires employers to at least respond to and address workers’ requests for alternative schedules and work arrangements. Although the NH legislature recently declined to pass such legislation, it did pass a law this past session prohibiting employers from retaliating against employees who ask for flexibility.
Even though there is no specific protected category of “caregiver,” juries have shown their willingness to be creative in punishing behavior which they find to be discriminatory or offensive. Consequently, employers should take great care to treat employees fairly and humanely. Not only is it the best defense against lawsuits, it generally results in a happier and more loyal workforce.
In 2007, the EEOC provided a list of best practices for employers, and the advice is still good today:
- Train managers about the legal obligations to workers with caregiving responsibilities.
- Develop, disseminate and enforce a strong equal employment opportunity policy that defines relevant terms and describes and prohibits common stereotypes and biases against caregivers.
- Establish work-life policies and make certain that managers at all levels are aware of and comply with them.
- Respond to complaints of discrimination efficiently and effectively and, above all, protect employees from retaliation.
- Monitor compensation practices and performance appraisal systems to avoid inequity.
- Encourage and consider requests for flexible work arrangements that include telecommuting and flexible or reduced hours.
- Provide reasonable amounts of paid sick and personal time.
Adhering to these suggestions, and the others contained in the guidance will not only help to protect your company from legal risk, it will also make you an employer of choice in this tough labor market.
Charla Bizios Stevens, director and chair of the Employment Law Practice Group at the law firm of McLane Middleton, can be reached at charla.stevens@mclane.com.