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Sick children, aging parents and the workplace: family responsibilities and caregiver discrimination cases on the rise

August 30, 2016

The Center for WorkLife Law at the University of California, Hastings, has issued a 2016 "Family Responsibilities Discrimination Litigation Update" regarding employment cases brought by caregivers. The report analyzed 4,400 cases of family responsibilities discrimination to determine recent trends. 

 

First, an excerpt from the report about what constitutes family responsibilities or caregiver discrimination.  

 

Family responsibilities discrimination (FRD) – also called caregiver discrimination – occurs when an employee suffers an adverse employment action based on unexamined biases about how workers with family caregiving responsibilities will or should act, without regard to the workers’ actual performance or preferences.[2] Such discrimination can be subtle. For example, mothers may be denied professional development opportunities because their supervisors believe that they are not as committed to their jobs or as reliable as they were before having children. Similarly, employers may assume that mothers would want to or “should” be home with their children and may give them less challenging assignments that do not require long hours or travel – which often leads to the denial of advancement because the mothers aren’t “ready.”

 

FRD can also be more blatant. Pregnant applicants have been denied jobs with the explanation that the employer does not hire pregnant women. Supervisors have denied paternity leave to male employees, telling them that parental leave is for women. Employees who ask for family leave to be with dying parents have been told they will be terminated if they don’t come to work. Some supervisors have bluntly told employees to choose between their families and their jobs.

 

In order to address discrimination based on family caregiving responsibilities, employment lawyers apply a combination of laws to the particular scenario.  These laws can range from federal and state employment discrimination statutes, including laws against sex discrimination and pregnancy discrimination; the Family and Medical Leave Act of 1993; and the Americans with Disabilities Act of 1990 and 2008 amendments.

 

As for why it happens, the report suggests:

 

FRD typically arises as the result of clashing expectations, exacerbated by the changing demographics of the workforce. Employees’ expectations that they should be able to care for their family members, raise their children, and support their parents, frequently collide with employers’ expectations that employees will be “ideal workers” – those who can work full-time, full-force for 40 years or more with no time off for childbearing or childrearing,[3] or other caregiving. Although few such workers exist today,[4] the structure and norms of the workplace still exist as if they predominate.

 

Some statistics and conclusions: 

 

  • FRD cases have risen 269% over the last decade. Between 1998 and 2012 in particular, FRD litigation filings increased 590%.

  • Cases involving eldercare have increased 650% specifically and account for 11% of FRD cases. As people continue to live longer, growth in eldercare cases is expected to continue. The percentage of males as plaintiffs accounts for 39% of eldercare cases, and 13.6% in FRD cases overall.

  • Pregnancy accommodation cases -- where women would like to continue working but need workplace accommodation to do so -- increased 315%. They are the most common type of claim, accounting for 67% of FRD cases. A Massachusetts Pregnant Workers Fairness Bill specific to this issue failed to pass during the last legislative session. 

  • Other FRD cases involve care for sick children (9% of cases) or sick spouses (6%).

 

The report noted two other continuing trends:  1) "new supervisor syndrome," where workers begin suffering family responsibilities discrimination when they get a new supervisor, and 2) "second child syndrome," where employees encounter increased caregiver discrimination upon the birth or placement of a second or subsequent children.

 

These issues are increasingly common as adult children care for their aging parents for long periods of time while also having children of their own. The squeeze brought on at home can be exacerbated by employers who discriminate against the caregivers. 

 

If you are an employee, have encountered any of these issues, and would like to know more about your legal options, contact me for an employment law consultation.  If you are an employer concerned about how to navigate these issues properly in your workplace, please also do the same.

 

 

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