An employer is looking to fill a vacant position. It has narrowed its applicant

search to two female candidates.

Both applicants appear equally qualified

for the job, possessing similar academic

credentials, work experience and skills.

However, during the interviews,

the employer learns that one of the

applicants is married and has three

small children, while the other applicant

is single and has no children.

If the employer decides not to hire the

married woman with small children

because the employer assumes she will

need time off from work because she’s a

caregiver, is the employer in “trouble”?

In short, the answer is “Yes” if the hiring

decision is based on the stereotype that

the single woman will be more dedicated

to her job than the married woman

with dependents because the married

woman may have to take time off to act

as a caregiver.

The applicant could sue the employer

for “marital status” and “caregiver”

discrimination. “Caregiver” discrimination?

You may have never heard of the

term, but it is receiving increased attention

on a state and federal level.

The National Library of Medicine

(NLM) defines “caregivers” as people

who take care of other adults, often parents

or spouses, or children with special

medical needs. According to the NLM,

some caregivers may be family members,

while others may be professionals

who are paid for caregiver services.

Caregivers often help with:

• Food shopping and cooking;
• House cleaning;
• Paying bills;
• Giving medicine;
• Going to the toilet, bathing and

  dressing;

• Eating; and
• Providing company and emotional

  support.

Changing Demographics

It is no secret that employee demographics

are rapidly changing. During

the last several years, the number of

family “caregivers” in the workplace has

increased significantly.

The federal Equal Employment Opportunity

Commission (EEOC) recently

reported that women continue to be

the primary caregivers for most family

members, including children, parents,

in-laws and spouses. Men are doing

their part as well, of course. Statistics

show the amount of time men spend on

childcare nearly tripled between 1965

and 2003.

According to the EEOC, nearly onethird

of families have at least one family

member with a disability, and about

one in 10 families with children under

18 years of age include a child with a

disability.

In addition, many employees find themselves

in the “sandwich generation”—

those individuals between the ages of

30 and 60 who face significant work

responsibilities, along with childcare

and eldercare duties.

Savvy employers should take note of

these statistics. With the number of

working caregivers on the rise, the

frequency of litigation involving such

employees has also increased dramatically.

According to a 2010 report issued by

the Center for WorkLife Law, part of

the University of California Hastings

College of the Law, which studied some

2,100 lawsuits filed by employees with

family caregiving obligations, these

types of cases have risen nearly 400

percent over the past decade, in contrast

to the overall decrease in employment

discrimination filings during this same

period.

Particularly alarming, this same report

found that employees filing caregiver

discrimination claims succeed in recovering

the majority of the time, with the

average verdict or settlement amounting

to $500,000 or more.

Laws Protecting Caregivers

The above statistics indicate employers

may not fully appreciate their legal

responsibilities to employee caregivers.

Indeed, the source of caregiver protections

can be confusing.

No federal laws explicitly outlaw

discrimination against family caregivers.

Though several states passed some

form of legislation addressing caregiver

discrimination, California (at least so

far) has not been one of them. Recent

attempts to amend California’s Fair Employment

and Housing Act (FEHA) to

include “familial status” as a protected

class have failed, even as recently as this

past year.

So what are the caregiver lawsuits based

on? The answer lies in existing federal

and state statutes, such as Title VII of

the Civil Rights Act of 1964 and the

FEHA, which already prohibit forms of

discrimination affecting caregivers.

Under these laws, caregivers may belong

to one or more “protected classes,”

including marital status, pregnancy and

gender. So if an employer routinely fires

or demotes expectant mothers, that

could be considered illegal pregnancy

discrimination.

Likewise, if an employer treats female

employees with children differently

than male employees with children,

this could be gender discrimination.

These protections run both ways, too.

An employer who denies male caregivers

the same level of benefits as female

caregivers (e.g., flexible work schedules,

telecommuting opportunities, etc.)

could be equally guilty of sex-based

decision-making.

The EEOC published an Enforcement

Guidance providing detailed examples of

potential legal violations in this area.

These hypotheticals cover discrimination

against women with young children

(as opposed to pregnancy-based issues),

discrimination based on employee

participation in flexible work arrangements

(because of the presumption

that caregiving makes an employee less

dedicated), denying part-time work to

males because of sex-based stereotypes,

and denying jobs to applicants who care

for individuals with disabilities.

In addition to these anti-discrimination

statutes, many state and federal laws

also provide protections for employees

who must tend to personal and familyrelated

matters.

These include the Family and Medical

Leave Act (FMLA), the Americans With

Disabilities Act (ADA), the California

Family Rights Act (CFRA) and the

California Pregnancy Disability Leave

law, which prohibit discrimination or

retaliation against employees who take

statutorily protected leave.

For instance, a male employee who

is criticized in a performance review

for “being too distracted” after taking

periodic leaves of absence to care for an

elderly parent, may be able to prevail on

a FMLA/CFRA-based retaliation claim.

Emerging Trends

In its 2010 report, the Center for

WorkLife Law identified certain consistencies

in the recent caregiver discrimination

cases. First, the Center used the

term “new supervisor syndrome” to

identify a common source of potential

liability that arises when new supervisors

are brought in to lead an organization.

In such cases, the new leadership

will often feel pressure to make changes

to improve efficiencies and cut costs.

As a result, employees with family

caregiving responsibilities, such as those

who have been working flexible schedules,

or who have recently taken family

medical leave, may be viewed as less

productive. Of course, employers would

be wise to closely monitor the personnel

decisions of new supervisors to ensure

an absence of illegal bias.

The Center for WorkLife Law also

identified an increase in claims filed by

female employees who become mothers

to more than one child. According to

the report, this apparent “second child

bias” is based on the assumption that

the employee will no longer be able to

balance her workload when she becomes

burdened with the additional responsibilities

of caring for multiple children.

Of course, this is illegal stereotyping.

The focus instead must be on whether

the individual can adequately perform

the requirements of the position. In this

respect, it is important to remember

that “benevolent” employment decisions

are not always lawful.

For example, deciding not to promote

a qualified female employee to a job

that requires travel merely because she

has young children or a disabled spouse

— even when well-intended to help

the employee avoid hardship — can be

evidence of discriminatory motive.

Conclusion

Evolving workplace demographics are

an ongoing challenge for most employers.

Because employee lifestyle issues

can hinder work performance, it can

be tempting to take such matters into

consideration when making employment

decisions. This can obviously lead

to trouble, however.

To avoid potential liability, including

claims for caregiver discrimination, employers

must make consistent, performance-

based and well-documented

workplace decisions.

This will help insulate the employer

from liability, particularly when an

employer makes an adverse employment

decision that coincides with an event

such as an employee’s pregnancy or

request for time off to care for a relative with a disability.