Overview of Federal LawCaregiver Discrimination
Many federal and state laws protect employees (including at-will employees). The descriptions below merely provide you with a place to get started. I strongly advise you to consult an attorney to determine whether any of these laws apply to you.
What Is Caregiver Discrimination?
Michelle Singletary wrote an interesting article (http://www.washingtonpost.com/business/economy/aarp-study-burden-of-long-term-care-needs-of-elderly-straining-families/2011/08/03/gIQAT9FdsI_story.html) in The Washington Post a bout the increasing demands that women (and some men) face as they take on the role of caregiver for aging or disabled family members. Clearly, these demands can cause strain for working caregivers who have to balance the demands of family and work.
Although not discussed in the article, many of these caregivers suffer adverse—and often illegal—actions at work: for instance, the sales person who is not promoted because management believes she cannot take on increased responsibility due to her need to care for apparent with Alzheimer’s. Other examples of caregiver discrimination include the following types of actions when they are not motivated by a valid business reason:
- Firing an employee after finding out she is pregnant
- Firing an employee when he or she returns from paternity or maternity leave
- Firing an employee for performing his or her family responsibilities
- Firing an employee who is pregnant, who has an aging parent in poor health, or who has a sick spouse, to avoid health insurance costs and to avoid expected excessive absences from work
- Refusing to hire or promote apparent in favor of a less-qualified person who does not have children
- Refusing to offer a flexible schedule to allow a caregiver to provide child care or other assistance to a family member, though some employees are granted flexible schedules for other reasons
- Providing in accurate information to an employee about the availability of leave and benefits
- Discouraging an employee from taking maternity, paternity, or family and medical leave
- Punishing an employee who provides care or takes leave—through performance evaluations, disciplinary actions, reassignment, or transfer
- Criticizing an employee for being a caregiver, including comments based on stereotypes
No single statute prohibits these acts or protects those who are subject to discrimination because they have care giving responsibilities. But together, a number of laws do provide such protections to caregivers:
- Title VII of the Civil Rights Act disallows discrimination on the basis of any sex-based stereotype. 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 wifes hould do.”
- The Americans with Disabilities Act (ADA) bars discrimination against those who “associate with” disabled family members. “Associate with” includes serving as a caregiver.
- 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.
We will explore some of these claims in more depth in the following chapters.
The Center for Work Life Law has published some excellent information about care giver discrimination on its website.
Employment Laws for Individual Employees
Harassment and Discrimination
Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals against employment discrimination based on certain protected characteristics, such as sex, race, age, and religion. This law applies to employers with fifteen or more employees. Many states and localities have a similar statute that addresses discrimination in the work place; sometimes these statutes offer greater protections than the federal law. In the District of Columbia, that law is the D.C. Human Rights Act of 1977; in Maryland, it is Title20 of the state government article in the Maryland Code; and in Virginia, it is the Human Rights Act.
- Race: An employer cannot take any action against you based on your race, no ran it treat a person differently than other employees based on race. For instance, an employer cannot promote only white males over black males.
- Sex: An employer may not treat an employee in a different way based solely on that person’s sex. For instance, an employer cannot prevent women from applying for a certain position because the employer thinks the tasks are “a man’s work.”
- Sexual orientation: Many courts have found that sexual orientation is not protected under federal law; however, it is a protected status in some states and localities, including the District of Columbia and Maryland. The District also protects employees from discrimination based on gender identity.
- Pregnancy: Pregnancy discrimination is a form of sex discrimination and is prohibited by the federal Pregnancy Discrimination Act (PDA). Under this act, an employer cannot make an employment decision based on a stereotype of the capabilities of pregnant women. For instance, an employer cannot refuse to promote another wise qualified pregnant woman based on a belief that she will not return to work because all mothers want to stay home with their kids. District of Columbia law prohibits discrimination based on pregnancy, childbirth, medical conditions related to pregnancy and childbirth, parenthood, and breast-feeding. Maryland law prohibits discrimination based on pregnancy, childbirth, and related medical conditions.
Marital and family status
Family status and marital status are generally not protected under federal law. However, District of Columbia law protects both; it even covers family responsibilities. Maryland and Virginia includes marital status as a protected characteristic, though the ability to win a monetary award under Virginia law is limited.
The Americans with Disabilities Act (ADA) protects those with disabilities from discrimination at work. Just because you are sick or have a medical problem does not mean that you are covered by the ADA. Instead, you must have a disability that interferes with a “major life activity,” like working, walking, breathing, or seeing. If so, the law requires your employer to provide an “accommodation” to you so that you can continue to do your job.
This is a very complicated area of law. If you believe you may be covered by the ADA and need your employer to make changes to your job duties, write a letter to your superior requesting a “reasonable accommodation” and be specific about the changes you need. Then make an appointment to see a lawyer. Better yet, see the lawyer first.
In the care giver context, the ADA prohibits discrimination based on “association with” an individual with a disability, which includes relationships between caregivers and their children, parents, or spouse. Employers can not treat employees less favorably based on stereotypical assumptions about their ability to perform their job duties while also providing care to a relative or other individual with a disability.
Hostile Work Environment
I often receive calls from people who have heard the phrase “hostile work environment” and believe they have been subjected to one. It is undoubtedly true that many people are. But it is important to know that a “hostile work environment” is illegal only when it is based on something called “protected status,” which can mean any protected characteristic, such as sex, race, or religion. Thus, if you are an African American woman and your boss and colleagues repeatedly make a racist joke, that is a hostile environment
based on race. On the other hand, if you are an African American female whose boss yells and screams every time you make a mistake—and if the boss also yells at your Caucasian colleagues when they make a mistake—this is no doubt a “hostile work environment,” but it is not based on race and therefore is not illegal.
Just because a termination is unfair doesn’t make it illegal. Below are examples of some legal terminations from employment. Even if your dismissal is legal, keep in mind that you might still have a case if the reason for termination offered by your employer is a lie.
You work in a sales position for your company that involves managing five junior sales executives. You have no employment contract with your company and are an at-will employee. Your numbers are consistently good, but you have experienced a few problems with underperforming junior sales executives. However, this is not your fault because you cannot hire or fire, even though you have management authority. That decision is left up to your boss.
At your year-end review, you are told you are being let go because, although you are a great sales person, you lack management potential. You later learn that you were replaced by a junior sales person with inferior numbers, and he happens to be a golfing buddy of your boss.
You got a lawyer wondering whether this is wrongful termination.
Answer: While this termination is certainly “wrongful,” it is not illegal. Employers are entitled to be wrong about your abilities and to make (within reason) dumb employment decisions. However…
Now, take the same situation as above, but assume that you had just returned from maternity leave when your boss fired you. He later told a co-worker that you were a great sales person but “a new mother really needs to be home with her kids, not putting in forty hours a week here. Plus, I know she’s married. The man of the house should be the one to bring home the bacon.”
This is a different situation. Here the employer’s real reason for firing you—stereotypes based on gender—is illegal.
You work as an administrative assistant in a large nonprofit organization and are paid an hourly rate. Your boss is, well, strange. You have no written contract with the company and are thus an at-will employee. On Monday, you come to work wearing a blue shirt. Your boss calls you in and says that he is uncomfortable with you and forth at reason you are fired.
Is this illegal? Strangely, no. In an at-will relationship, an employer can fire you for any reason, so long as there as on is not unlawful.
Assume the same facts, but when talking to your lawyer, it comes out that you were paid for forty hours of work per week, but your boss often required you to work fifty hours or more a week, while instructing you to put only forty hours on your time sheet. Because you loved your work and wanted to keep your job, you complied.
Is this illegal? Yes. It is not illegal for your boss to fire you for wearing a blue shirt, but it is illegal to require you to work without pay.
Your boss is a blow hard. He constantly complains and yells. You find this unprofessional and tell him so. Although your boss doesn’t say anything, next week you find your work load doubled. You complain to the boss, but nothing happens. This continues for weeks. Unable to keep up with the increased work load, you miss some deadlines. Your boss calls you into his office, puts his feet up on his desk, and fires you, with a big grin on his face.
Is this illegal harassment? Unfortunately, no. Your boss is a jerk, but that is not illegal.
Assume the same facts, but this time you have an employment contract with the company stating that you can be fired only for gross misconduct, including fraud.
Is it illegal now? Maybe. It could be under this situation that you have a case for breach of contract because you were not really fired for cause.
The federal Family and Medical Leave Act (FMLA) applies to any employer with at least fifty employees within a seventy-five-mile radius (see why you need an attorney!). Under this law, employees who have worked a minimum of 1,250 hours over the past year must be allowed at least twelve week so fun paid leave to take care of their own or a family member’s medical needs. (Note that even if the employee is not covered by the FMLA, she may still been titled to take leave under the ADA, provided that her employer has at least fifteen employees.) In addition, employees may be covered by other state and local laws—for instance, the D.C. Human Rights Act. To complicate matters further, an employee may been titledto paid leave under the employer’s short- or long-term disability policy. An employeshould be careful, however. A statement on an application for long-term disability indicating an inability to work could result in the loss of rights under the ADA. So, if you are having difficulty with your employer over leave, contact a law firm that handles leave discrimination cases.
For many of the claims discussed above, an employer violates the law if it takes action (retaliates) against you for attempting to assert your rights. Often it is easier to prove a retaliation claim than it is to prove the underlying violation. For instance, if you report pregnancy discrimination to your HR department and the company fires you as a result of that complaint that is illegal retaliation. You can win a case on this even if you are unable to actually prove the pregnancy discrimination.
Establishing an employer’s failure to pay overtime is straight forward compared to discrimination law. If you are an hourly employee, you may be covered by the FLSA, which requires that your employer pay you for any amount of over time. Failure to do so can result in your employer having to pay double the amount owed to you.
This claim occasionally comes up in the employment context. It can occur if your boss or a co-worker says something false that damages your reputation and causes you harm. These cases are difficult. You should consider filing this claim only if (1) the statements against you are particularly damaging—for example, someone falsely accuses you of
sexual misconduct or theft—and (2) you suffered damages, meaning that you lost your job or suffered other financial harm as a result of the statement. Truth is an absolute defense to defamation, so it doesn’t matter how embarrassing or hurtful the statements are. If they are true or even arguably true—it isn’t defamation.
Be careful, because defamation claims are sometimes also brought by employers against employees, sometimes as a counter claim (that is, to harass) an employee who has sued.