These “family responsibility discrimination” claims are an emerging trend in employment law.
Although there is no federal law protecting employees who are caregivers against discrimination in the workplace, employees are filing claims under a variety of statutes, including Title VII, the Americans with Disabilities Act and the Family Medical Leave Act.
Whether the trend is attributable to the growing number of women in the workplace who are the primary caregivers at home, or the rise of the “sandwich” generation – those taking care of both young children and aging parents – the number of cases continues to climb.
In the decade prior to 2005, these claims rose 400 percent, according to Cynthia Calvert, a management side attorney with Work Life Law in Washington, D.C.
Since 2006, “the numbers have continued to go up, and this year they have started to jump like crazy. 2009 is so far proving to be a very dramatic year,” Calvert said.
But employers are still “at the beginning of the learning curve” on this issue, said Marc Antonetti, a partner with Baker & Hostetler in Washington, D.C. who advises employers and recently moderated an ABA teleconference on this topic.
Two jurisdictions – Alaska and Washington, D.C. -have statutes protecting caregivers, and a number of other states are considering legislation that would give varying degrees of protection against family responsibility discrimination.
Here’s a look at the kinds of legal claims plaintiffs are raising:
• Title VII
The bulk of claims arise under Title VII and allege sex discrimination or gender stereotyping, such as where a pregnant woman is fired or a mother is passed over for promotion based on an employer’s stereotypes about her commitment to her job.
These cases are hard to prove because gender stereotyping is not always blatant and may be subconscious on the part of the decision-maker and hard to draw out, said David Webbert, a plaintiffs’ employment attorney with Webbert & Johnson in Augusta, Me. who recently handled a claim on behalf of a mother of triplets who was denied a promotion.
The 1st Circuit concluded that she could sue under Title VII for gender stereotyping, even though the decision-maker never mentioned her gender and the person who got the promotion was also a mother.
In that case, the decision-maker told the employee that the reason she didn’t get the promotion was “nothing you did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.”
Another potential legal basis for a family responsibilities discrimination claim is the ADA’s “association” provision.
Such a claim might be asserted if an employee is caring for an individual with a disability.
An example of this, said Rae Vann, general counsel of the Equal Employment Advisory Council in Washington, D.C., would be if “I’m terminated because the company knows I have a child who is severely disabled. Maybe the employer is concerned about my commitment to my job or rising health care costs, but the reason I’m fired is not my own disability but my association with a person with a disability.”
Until recently these cases were difficult to prove, but they may be easier because of the broader definition of “disability,” under the new ADA Amendments Act , said Webbert.
The Family and Medical Leave Act can also be the basis for a caregiver discrimination claim.
For example, in one of the first gender discrimination trials under the Act, a male state trooper won $375,000 because he was denied leave to care for a newborn based on his employer’s assumption that men are not primary caregivers.
However the FMLA is more limited in coverage than the other statutes, because once employees have used up their 12 weeks of FMLA leave, they are not eligible for any more leave for 12 months, said Vann.
• Lilly Ledbetter Act
A family responsibilities discrimination claim that might otherwise be time-barred could be linked to a claim under the newly revised Fair Pay Act.
“If I was a mother who took leave five years ago, then didn’t get a promotion because my employer had the impression I would be out a lot, or I didn’t get a bonus or pay increase because my hours were lower,” a plaintiffs’ lawyer might be able to link a family responsibilities discrimination to the Lilly Ledbetter Act, said Antonetti.
Separate policy needed?
There is disagreement over whether employers need a separate policy to address family responsibilities discrimination.
“I wouldn’t go so far as to say an employer has to have a policy. [That’s] a little dangerous because employers can get confused into thinking this is a new, legally protected characteristic,” said Vann.
Calvert, on the other hand, recommends employers adopt “a policy that says we don’t discriminate based on family responsibilities.”
“By having a policy in place, employers have to talk about it, think about it and train on it,” she noted.
It’s important that employers make sure their existing policies for attendance, promotion, leave or flex-time don’t disproportionately impact women, who tend to be the primary caregivers.
For example, some courts have held that policies that say an employee can’t take sick leave in the first year disproportionately impact women, because they may become pregnant, said Calvert.
“If you have a flex work policy, make sure it’s open to all employees, or if it’s only available to certain employees make sure the eligibility criteria make sense and are uniform and non-discriminatory,” cautioned Vann.
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