Employers Should Be Cautious Not to Discriminate Against Caregiving Employees

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<strong>Philadelphia &mdash; Feb. 27</strong><br />Employers who make employment-related decisions about caregiving employees that are based on their gender, or favor workers who don&rsquo;t have family responsibilities, risk being sued for &ldquo;family responsibilities discrimination,&rdquo; according to Pepper Hamilton LLP, a multi-practice law firm. <br /><br />&ldquo;Many employers are caught in the middle between their employees&rsquo; competing work and family responsibilities. They must balance the impact of employees&rsquo; needs to care for their children and parents with their primary mission: running a business,&rdquo; said Susan Lessack, a partner with Pepper Hamilton who concentrates her practice in employment counseling and employment litigation.<br /><br />However, employers also must be aware of the various laws that protect employees&rsquo; rights as caregivers, and not violate them. Lawsuits related to Family Responsibilities Discrimination (FRD) are increasing, according to Lessack. <br /><br />&ldquo;The Equal Employment Opportunity Commission (EEOC) attributes the rise in claims of family responsibilities discrimination to the significant increase in the number of women working outside the home. Women now comprise almost half of the U.S. workforce. But women are still the primary caregivers in most families,&rdquo; said Lessack.<br /><br />This trend is particularly prevalent with women of color, who are more likely to be raising children in a single-parent household and are more likely to be responsible for caring for extended family, such as grandchildren or elderly relatives. And as people live longer, employees are increasingly responsible for caring for elderly parents. This has led to a rise in &ldquo;sandwich&rdquo; caregivers, employees who have caregiving responsibilities for both children and parents. <br /><br />&ldquo;These escalating caregiving responsibilities force employers to make difficult decisions, wanting to offer flexibility to employees while managing productivity and attendance,&rdquo; said Lessack.<br /><br />Both genders are filing FRD cases, alleging they have been passed over for promotion or terminated due to home responsibilities such as caring for a child, a disabled person or an elderly parent. While women bring about 92 percent of claims, men also are suing.<br /><br />FRD claims can be brought under a variety of legal theories, most commonly Title VII and the Americans with Disabilities Act, according to Lessack. <br /><br />&ldquo;For example, if a company routinely allows males to leave the workplace for personal reasons, but is more stringent when females need allowance for child care, the female employees are likely to have a claim for FRD. If a parent misses a lot of work time to care for a disabled child and is terminated, while other employees are permitted to miss time for personal reasons, the parent might have a claim under the Americans with Disabilities Act for discrimination based on association with a disabled individual,&rdquo; said Lessack. <br /><br />Claims generally are based on assumptions by supervisors about the attitude or commitment of caregivers &mdash; that the more caregiving responsibilities employees have, the less likely they will be committed to their jobs. Supervisors who assume employees with caregiving obligations will be unable or unwilling to handle new responsibilities or travel and promote or select other employees may be putting their organizations at risk for FRD claims.<br /><br />A recent jury decision analysis found that employers won only about 47 percent of the cases, with almost the same average of wins for men and women claimants. Nonprofessional employees brought the majority of FRD cases (62 percent versus 38 percent brought by professional employees). Half of the cases were in the service sector.<br /><br />&ldquo;Employers should take notice of a clear trend: Juries feel compassion for employees caught in the work-caregiving dilemma. That can be an expensive lesson,&rdquo; said Lessack.<br /><br />&ldquo;While employers do not need to give special preferences to those with family responsibilities, they must be aware of potential problems posed by unenlightened supervisors,&rdquo; she added.<br /><br />Lessack suggests employers should be wary of:<br /><br /><ul><li>Not hiring or promoting caregivers because of assumptions about their commitment to work.</li><li>Devising employment application scenarios that would, in essence, exclude those with children.</li><li>Assigning work schedules specifically designed to conflict with caregiver responsibilities.</li><li>Promoting employees without caregiver responsibilities over caregivers who are more qualified.</li><li>Firing or suggesting abortions, in lieu of firing, to employees.</li><li>Firing or demoting employees returning from maternity or paternity leave.</li></ul><br />&ldquo;As with any employment issue, employers who make decisions that affect caregivers should ensure they are founded on solid business reasons and not on stereotypical assumptions,&rdquo; added Lessack. <br />

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