Caregiver Discrimination Is Real. What You Need to Know.Caregiver Discrimination
What Is Caregiver Discrimination?
Caregiver discrimination, also known as “family responsibilities discrimination,” occurs when an employer discriminates against someone based on his or her caregiving responsibilities. While there is no single statute that protects those who are subject to discrimination because they have caregiver responsibilities, there are a number of laws that together provide such protection for caregivers. These laws are:
- The Family and Medical Leave Act (FMLA) protects both women and men who need to take leave to care for a child or a family member.
- The Americans With Disabilities Act (ADA) prevents discrimination against those who provide care to disabled family members.
- Title VII of the Civil Rights Act prevents discrimination on the basis of any sex stereotype, and it applies to both men and women. This means that an employer cannot deny leave to a man to care for his child because “that is something his wife should do.”
- The Age Discrimination in Employment Act (ADEA) protects workers over 40 and can apply to those with caregiver responsibilities.
- State laws Like the D.C. Human Rights Act (DCHRA): Some states and localities provide additional protection. For instance, unlike federal law, the DCHRA makes discrimination based on sexual orientation unlawful.
An example of caregiver discrimination would be a woman who has one child and is about to have a second. Her boss says to her: “It’s really hard to have multiple children, and someone should be at home for them.” And then the woman is fired. This is an example of caregiver discrimination because the termination was not based on actual work performance or qualifications but rather on the employer’s stereotype regarding how a parent is supposed to act: in this case, that a woman with children should stay home. A second example is a boss who fires a male employee after the employee takes leave to be with a newborn child because the boss believes that the man is no longer sufficiently devoted to the company.
Caregiver Discrimination in the Workplace
Caregivers are typically caring for their children, the elderly, or a loved one with a disability or illness. To do this, caregivers may require leave, a flexible schedule, or a combination of the two. But employers are not always willing to make these types of accommodations. As a result, caregiver discrimination claims arise when an employer denies leave or when an employer retaliates against an employee for taking or requesting leave. Similarly, like in the examples above, employers will often terminate an employee simply because he or she is a caregiver and the employer has made false assumptions about the employee’s ability to work. The AARP has reported that “workers who make their caregiving responsibilities known on the job, for example by requesting family leave or a flexible work schedule, often encounter bias based on assumptions that they are less competent than other workers or not committed to their jobs.”
The case of Brian Jun is one example of caregiver discrimination. After Jun requested time off to care for his wife who was suffering from postpartum depression, his boss began treating him differently, eventually retaliating against him before firing him. Jun sued, claiming violations of the Family and Medical Leave Act. At present, this case remains in litigation.
What Can You Do?
If you believe you are being discriminated against due to your caregiving responsibilities, there are steps you can take to stand up for your rights. Because there is no one law that explicitly protects caregivers, it is important to speak with a lawyer who specializes in employment law. You may be covered under one or more federal or state laws.
Secondly, you should report the discrimination to your HR department or follow your employer’s reporting procedures, if it has such procedures in place. Make sure you document everything, including who, when, where, how, and what you reported along with every detail that may be relevant to your case, including any possible witnesses. It is ideal (though not necessary) for you to talk to a lawyer before you report discrimination so that you will be prepared if your boss starts to retaliate against you. Regardless, you want to take action—perhaps by filing a charge with a federal or state agency—as soon as you can after the wrongdoing occurs. Employment laws often have short and arbitrary time limits to bring your case. You do not want to wait too long and find that you have no way to protect your rights.
Important Facts and Resources
- A number of states have laws protecting caregivers that exceed the federal law protections. These states include Alaska, Connecticut, New Jersey, Oregon, Maryland, and the District of Columbia.
- The Equal Employment Opportunity Commission enforces federal employment laws and is a good resource for information surrounding caregiver protection. See Enforcement Guidance: Unlawful Disparate Treatment of Workers With Caregiving Responsibility.
- The AARP Caregiver Resources Center is an excellent resource and support center for those caring for the elderly.
- The Center for WorkLife Law has pioneered research and documentation on family responsibilities discrimination and is a great resource for all caregivers balancing work and caregiving responsibilities.
- The statute of limitations for filing a claim under one of the laws covering caregiver discrimination can be short (around 180 days), so it is critical that you speak with a lawyer as soon as possible.
- The success rate of cases alleging family responsibility discrimination is greater than 50% on average (the typical employment discrimination case success rate is 20%).
- Family responsibility discrimination cases can result in damage awards of more than $100,000.
At Spiggle Law, we help employees stand up for their rights and fight back against illegal employment practices. Our team of experienced lawyers can help you understand the nuances of the law as they apply to your case. Should you decide to pursue a claim, we will act as your advocates and advisers from the initial consultation to the final settlement. Contact us to learn more about our team and schedule a consultation.