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
- Eating; and
- Providing company and emotional
It is no secret that employee demographics
are rapidly changing. During
the last several years, the number of
family “caregivers” in the workplace has
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
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
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
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
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
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
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
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.
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.
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
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.