What the Law Says About Caregiver Discrimination

Caregiver Discrimination
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Title VII of the Civil Rights Act of 1964

Title VII is a broad statute that prevents discrimination against employees or applicants for employment based on race, color, religion, sex (including pregnancy), or national origin. It also prohibits employers from retaliating against employees who complained about discrimination, filed a claim of discrimination, or participated in a discrimination investigation or lawsuit. You can find Title VII in volume 42, chapter 21 of the US Code.

The most relevant language for those facing caregiver discrimination is at section 2000e-2. It states:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

You may have noticed that the statute doesn’t say anything about caregiver discrimination. But the US Supreme Court has found that Title VII makes discrimination based on sex stereotypes illegal. See Phillips v. Martin Marietta, 400 U.S. 542 (1971), and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Note:

If it is illegal for an employer to penalize an employee due to sex-based stereotypes, it would also be illegal for an employer to discriminate against a man because he asked for time off to care for a newborn simply because the boss believes that taking care of children is “women’s work.” But, given that women still bear the burden of providing child care and elder care, I most often see these stereotypes used against women.

Sample Scenario

Cathy is a high-level executive at a nonprofit. The executive director has been explicitly grooming her to take over his position. He is in his sixties and ready to retire. Cathy has a two-year-old daughter.

Once, when on a business trip, the executive director asked her whether she planned to have more children. Momentarily caught off guard, she responded, “I don’t know. Maybe. I’ve been too busy to think about it.” The executive director looked at her for a moment, paused, and said, “You know, this executive director position is not really for employees with young kids. If you plan to have more children, you should plan to stay at home. Young children need their mother.” Cathy said nothing.

As she thought about this exchange over the next several days, it troubled her more and more. Eventually, she decided that she needed to say something to the HR department. She did. Shortly after that, she noticed a change in the way the executive director acted around her. He was stiff and seemed defensive.

Two weeks later, the executive director called an important staff meeting. At the meeting, he announced a “restructuring.” He also declared that he planned to push off retirement and that Cathy would become the communications director. She would keep the same salary and benefits, but the new position would allow her to “stop traveling so much.” Feeling like she had been punched in the stomach, Cathy sat numb and did not respond. Believing that she could no longer trust people in the organization—a place where she had invested the past seven years of her life—Cathy felt isolated, alone, and angry.

Is the executive director’s behavior illegal? What options does Cathy have?

The scenario above describes something that falls under the banner of caregiver discrimination.

Cathy’s situation is considered sex stereotyping. That is, the executive director is making an assumption about how Cathy should live her life solely on the basis of a stereotype of how women should perform in the workplace. Here, he is trying to enforce his belief that women should be at home with their children. While he is certainly able to hold those beliefs, he cannot use his position in the workplace to enforce them. This is illegal discrimination under Title VII of the Civil Rights Act. Of course, one important question to ask in this scenario is how many employees the employer has. Title VII applies only to employers with fifteen or more employees.

Moreover, Cathy is likely the victim of unlawful retaliation. She complained to HR about the director’s statements. He found out and took action against her by essentially demoting her. Thus, she has two separate claims: one for violation of Title VII and another for retaliation after she raised an objection to his discriminatory statements. The first thing Cathy should do is decide whether she wants to stay with the organization or leave with an appropriate severance. She should talk to an attorney to decide how best to accomplish her objective. Regardless, if she wants to preserve her option to go to court, Cathy must file a charge with the EEOC within 180 days from the day she was demoted. (In some states, she may have 300 days.)