Family Responsibilities Discrimination Series, Part 2: An Overview

Caregiver Discrimination, Family Responsibilities Discrimination
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You’re doing well at work when the unexpected happens: you get a call that your mother fell and hurt herself coming down the stairs. Now she’s going to need help recovering from her injuries.

Your mother lived alone, and none of your siblings are nearby, so it’s up to you to help your mother recuperate. However, you realize you’ll need to take some time off from work. You may not get all of your work done before you leave, inconveniencing some of your co-workers.

You walk into your boss’s office and explain the situation. He understands and tells you to take the time you need, but he’s visibly annoyed. Several months later, when end-of-year evaluations are completed, you get negative ratings for the first time in your career. Your boss says that you didn’t seem committed to your work this year and that you were out of the office too often.

Everything was fine until you had to take care of your mother. Now, things aren’t looking so promising at work. What just happened? You may have been the victim of family responsibilities discrimination.

Family Responsibilities Discrimination 

caregivingFamily responsibilities discrimination (FRD) is a form of discrimination based on an employee’s caregiving responsibilities. This includes an employer discriminating against an employee because the employee takes care of a child, parent, or sibling. It can also include discrimination based on fatherhood or pregnancy.

According to The Center for WorkLife Law’s report “Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016,” the number of FRD cases increased by almost 600% between 1998 and 2012, even though the total number of employment discrimination cases actually fell by 13% during that time. Discrimination based on pregnancy and maternity leave still makes up the vast majority of FRD cases. But the single biggest area of increasing FRD litigation involves eldercare, which grew 650% over that period.

These numbers aren’t surprising given the increase in the number of two-income households, the aging population, a growing number of men acting as caregivers, and the emergence of the “sandwich generation,” or those who are “sandwiched” between simultaneously caring for children and parents. The Pew Research Center states that about 30% of adults with at least one parent over the age of 64 have parents who need help with personal care or daily affairs.

How Does FRD Occur?

The way FRD occurs varies as widely as the reasons employees will need to care for a loved one. FRD often overlaps with discrimination on the basis of an employee’s:

  • pregnancy,
  • association with someone with a disability,
  • sex, or
  • age.

An overarching explanation for many examples of FRD involves differing expectations between employers and employees. Employees believe they should be able to take time away from work to care for their family members; employers don’t feel their employees should be taking this time off, even when it’s unpaid. This difference in expectations is especially pronounced in eldercare FRD cases, since employers tend to be less understanding of employees caring for parents than of employees caring for children or spouses.

There isn’t a single reason to explain why FRD takes place. Some of the many reasons can include the following:

  • changes in demographics, such as the aging baby boomer population;
  • societal changes: for instance, more men are engaged in caregiving activities today;
  • cultural expectations: employers may have certain ideas as to who should (or shouldn’t) have the primary caregiving responsibility; and
  • biases: these include unvoiced opinions, such as assuming that women should be caregivers while men should be breadwinners, that pregnant women lack focus or can’t produce high-quality work, or that employees with caregiving responsibilities are going to be more absent and less productive than non-caregiving employees.

Sometimes the discrimination can be obvious, such as an employer refusing to allow an employee time off from work to take FMLA leave or refusing to provide reasonable accommodations to a pregnant employee. Other times, it’s less obvious. If you read our earlier blog post titled “Family Responsibilities Discrimination Series Part 1: Snow v. Vanguard,” you can see how indirect the discrimination can be.

In the case of Snow v. Vanguard, Snow’s employer moved her to another department where it knew her performance would suffer. The plan was to create a history of negative performance reviews to justify her future firing. Other examples of FRD include the following:

  • not assigning lucrative, prestigious, or desirable assignments to employees who have to care for their family members;
  • refusing to mentor caregiver employees;
  • declining to promote or pay bonuses to caregiver employees; or
  • paying the caregiver employee a lower wage; this is particularly effective when an employee doesn’t know what other employees earn.

Given the often subtle, complicated, and nuanced circumstances surrounding FRD lawsuits, employees must take specific steps to successfully sue for FRD. Our next blog post will address some of these steps.

Summing It Up

  • FRD takes place when an employer discriminates against an employee due to the employee’s caregiving responsibilities.
  • The number of FRD lawsuits is growing rapidly, even though the overall number of discrimination lawsuits is declining.
  • FRD often overlaps with discrimination based on sex, age, and disability.
  • Biases, cultural expectation, societal shifts, and demographic changes all contribute to the rising number of FRD cases.
  • FRD is often subtle and involves excluding employees from professional advancement opportunities.

Do you believe you’ve been discriminated against at work based on your status as a caregiver? Please contact our office so we can help you understand the law and your rights.