It’s often easy for employers to be understanding when workers occasionally need to duck out of work early for a meeting at school or a trip to a child’s doctor. It happens to nearly every working parent once in a while.
But what about an employee whose child has some kind of special need, a parent whose caregiving responsibilities are seen as especially time-consuming and difficult to juggle with work responsibilities? An employer in that situation may be sympathetic but worried about getting the job done, even nervous about the reliability of the employee.
In addition to those attendance and performance concerns, employers have to be aware of legal hazards. Can an employer’s treatment of employees with special-needs children become a legal hazard? It is possible.
FMLA Protections
“The federal antidiscrimination laws do not specifically protect ‘caregivers’ as a group, but there are circumstances where a particular caregiver or parent has certain protections under the law,” says Catherine M. Stevens, an attorney in the Lexington, Kentucky, office of Frost Brown Todd LLC.
“For example, an employee caring for a special-needs child may be entitled to job-protected leave if the child has a ‘serious health condition’ as defined by the Family and Medical Leave Act,” Stevens adds. While not all special-needs children would make their parents qualify for FMLA leave, employers need to keep their obligations under the law in mind.
ADA Protections
Another legal hazard comes in the form of stereotyping employees who have children with special needs. It’s possible that an employer who refuses to hire or promote such a parent could run afoul of the Americans with Disabilities Act (ADA) since that law includes a provision prohibiting discrimination against a person because of his association with a person with a disability.
It’s not a given, but children with certain special needs may fit the definition of disabled under the ADA. Cases based on an employee’s association with someone with a disability are rarer than other types of ADA claims, Stevens says, but the ADA does provide for that possibility.
Although parents of special-needs children don’t constitute a protected class under the ADA or any other federal law, such employees do have recourse in the laws that define existing protected classes. For example, a working mother who feels she’s being held back at work because of a special-needs child might make a sex discrimination claim if she can point to more favorable treatment for a male coworker in a similar caregiving situation. Such a case could be disparate treatment based on sex, Stevens says.
Employers also have to be careful about how they handle coworker complaints about an employee’s attendance or performance. An employee taking leave to deal with a child’s needs shouldn’t feel obligated to explain details. Such explanations could cross the line into personal health information that an employer has to protect.
The reason for any employee’s leave should be kept confidential, Stevens says. Such details should be handled on a need-to-know basis, and an employee’s direct supervisor might not even be someone who would need to know. Employers need to make sure supervisors aren’t seen as retaliating, discriminating, or discouraging employees from taking leave they’re entitled to.
Family Responsibility Discrimination
Parents of children with special needs are among employees that can be at risk of “family responsibilities discrimination” (FRD). While there’s no specific federal law against it, information from the Sloan Work and Family Research Network points out that “employers are being sued using a ‘patchwork’ of claims under federal and state antidiscrimination and leave laws.”
The 2010 installment of the Sloan network’s Effective Workplace Series also points out that some states and local jurisdictions do have legislation that addresses FRD specifically.
FRD is a concept that’s gotten a lot of attention from the Equal Employment Opportunity Commission (EEOC) even though there’s no specific federal law against it. The EEOC has prepared a document titled “Employer Best Practices for Workers with Caregiving Responsibilities.” Here are some of the EEOC’s suggested best practices:
- Be aware of, and train managers about, the legal obligations that may have an impact on decisions about treatment of workers with caregiving responsibilities. Legal obligations include those in the ADA, the Equal Pay Act, the Pregnancy Discrimination Act, Title VII of the Civil Rights Act of 1964, and the FMLA.
- Develop, disseminate, and enforce a strong equal employment opportunity policy. That should include providing examples of prohibited conduct such as asking female employees, but not male employees, about their child-care responsibilities or denying male employees’ leave requests related to caregiving but not denying such requests from female employees.
- Respond to complaints of caregiver discrimination efficiently and effectively.
- Make sure employees complaining about unfair treatment of caregivers don’t suffer from retaliation.