Caregiver responsibility discrimination: an emerging issue

by Joseph U. Leonoro

For years, federal, state, and local employment laws have prohibited discrimination based on various protected characteristics, such as gender, race, disability, and age. In recent years, a new theory of discrimination, frequently referred to as “caregiver responsibility discrimination,” has emerged. There’s no federal  law that explicitly prohibits discrimination based on caregiving responsibilities. Rather, numerous courts have interpreted various laws, including the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), Title VII of the Civil Rights Act of 1964, and the Family and Medical Leave Act (FMLA), to prohibit discrimination against workers who have family caregiving responsibilities. Moreover, the Equal Employment Opportunity Commission (EEOC) has emphasized enforcement of this form of discrimination and has issued guidance to address it.

Context of caregiver discrimination

To be actionable, caregiver discrimination must be grounded on a protected characteristic found in an employment law (e.g., gender under Title VII or disability under the ADA). There’s no uniform definition of “caregiving responsibilities.” Most individuals recognize that parents are their children’s caregivers. As America ages, the reverse is also often true―adult children are frequently called upon to act as caregivers for their aging parents. That trend will continue as Americans continue to live longer. As a result, employers will be addressing these issues more and more frequently.

Caregiver discrimination most often arises in the context of gender discrimination under Title VII or analogous state laws. For example, an employer may decide to promote a less qualified male employee over a more qualified woman because the female employee is a mother with caregiving responsibilities. Although it may be surprising to some, men can also be the target of sex discrimination under Title VII.

Typically, sex-based stereotyping adversely affects women. However, in the caregiver responsibility context, employers often have stereotypes against men being the family caregiver. For example, an employer may think the female spouse should be providing care for a loved one, so it may be less likely to provide leave or flexible work accommodations when a male employee requests them.

The EEOC’s guidance cites some past cases reflecting that common stereotype. In one case, an employer illegally denied a male employee’s request for leave to care for his wife and newborn baby, stating he would be considered a caregiver only if his wife was in “a coma or dead.” Likewise, the EEOC cites a case in which a school district denied a male schoolteacher unpaid leave to care for his son even though its employment policies specifically provided for the same leave to female teachers. The point is, both men and women can be caregivers, and they should be treated equally.

Caregiver responsibility discrimination can also arise in the context of the ADA. For example, an employee may have certain responsibilities associated with caring for a disabled spouse. His employer cannot take adverse action against him on the basis of his association with the disabled individual. Similarly, it would be impermissible for the employer to deny leave to an employee who requests leave to care for a spouse when it allows similar leave in other contexts.

EEOC guidance

The EEOC has been aggressively targeting caregiver discrimination in recent years. To that end, it has issued guidance for employers to address the perceived problem of caregiver discrimination. Not surprisingly, the EEOC stresses that managers need to be trained on employers’ legal obligations as they relate to discrimination. Similarly, employers should adopt and enforce strong equal employment opportunity (EEO) policies. The EEOC’s guidance includes some common stereotypes that managers should avoid:

• Assuming that female employees who take advantage of flexible work arrangements are less committed to their jobs;

• Assuming that female employees should prefer to spend more time at home than at work; and

• Assuming that pregnant workers are less reliable than other employees.

The EEOC also stresses that employers should be careful not to discriminate against caregivers during the hiring process. The guidance gives an example of a man and a woman who apply for a customer service position. Each has three years of experience, but the female applicant’s experience is spread out over five years because she took maternity leave twice during the relevant period. In the hypothetical, the employer selects the male applicant because his continuous service shows a commitment to his career. The EEOC states it would be discrimination if the company refused to consider the female applicant because of her maternity leave.

Bottom line

As more and more employees are called upon to act as caregivers for our aging population, you must be mindful of the various employment laws that protect workers who may need time off or other accommodations to care for loved ones. 

Joseph U. Leonoro is an attorney with Steptoe & Johnson PLLC in the firm’s Charleston, West Virginia, office. He may be contacted joseph.leonoro@steptoe-johnson.com.

• West Virginia Employment Law Letter
  Excerpted from West Virginia Employment Law Letter and written by attorneys at the law firm of Steptoe & Johnson PLLC. WEST VIRGINIA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. The State Bar of West Virginia does not certify specialists in the law, and we do not claim certification in any listed area. For further information about the content of this article, please contact any of the attorneys at Steptoe & Johnson PLLC.