News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Employees Who Care for Elderly or Disabled Family Members Are Entitled to Protection from Discrimination

More than one in six American employees provides care or assistance for an elderly or disabled family member or friend. Caregiving responsibilities cut across socioeconomic and demographic groups, although women and low-income individuals still assume a disproportionate share of such responsibilities.  One in seven Americans is currently age 65 or older, but that number is projected to increase to one in five Americans by 2040.  As the population ages, the number of employees with caregiving responsibilities is only likely to grow.

The Equal Employment Opportunity Commission (EEOC) recognizes that employees with caregiving responsibilities face discrimination in the workplace related to these responsibilities.  For example, an employee may be prevented from taking leave to which she is entitled or punished when she exercises her right to such leave; an employee may be penalized for his association with a disabled employee; or an employee may be stereotyped as lazy or uncommitted to her job merely due to her caregiving responsibilities.

Unlike many other forms of discrimination, not all caregiving discrimination involves openly hostile conduct or a negative view of the caregiving employee.  An employer discriminates when it takes action based on stereotyped assumptions.  Consider the following scenario: Employee A spends his morning break filling out his March Madness bracket, while Employee B spends her break making telephone calls to coordinate medical appointments for her mother.  If the employer concludes that Employee B is distracted and not focused on her job, but does not question Employee A’s commitment, the employer is — perhaps even unconsciously — drawing an unfair and subjective conclusion based on a stereotype and, depending what actions the employer then takes, Employee B may have legal recourse under one of the statutes discussed below.  Imagine another scenario: Employer XYZ Corp. becomes aware that Employee A is caring for her mother with Alzheimer’s Disease.  Not wanting to burden Employee A, Employer XYZ steers Employee A towards less-demanding lower-profile projects—even though she hasn’t requested any change.  Employee A may lose out on promotion opportunities or other opportunities (e.g., bonuses) due to the Employer’s actions and may have legal recourse because the employer is changing her employment based on stereotyped assumptions about what she wants.

At the federal level, there is no single source of legal protection for employees with caregiving responsibilities.  And while many of the issues faced by employees with eldercare responsibilities are similar to the issues faced by employees with childcare responsibilities, the EEOC observes that “eldercare responsibilities generally increase over time as the person cared for ages, and eldercare can be much less predictable than childcare because of health crises that typically arise.”  To date, eldercare cases make up only a small proportion of family responsibility discrimination claims, but they are increasing.  According to one analysis, 23 such cases were filed in court before 2000, but 181 such cases were filed between 2000 and 2009; the largest individual jury verdict identified in this analysis was an $11.65 million verdict (under the FMLA and state law) for a hospital maintenance worker fired — after 26 years as a stellar employee — for taking leave and caring for his sick parents.

Employees with caregiving responsibilities generally rely on a collection of legal protections available under the following laws:

Family Medical Leave Act (“FMLA”): Claims under the FMLA arise in the caregiving context when an employee seeks leave (which can include intermittent leave) to care for a relative and that leave is improperly denied or an employee faces retaliation or interference based on his or her request for leave.

The Americans with Disabilities Act (“ADA”) or Rehabilitation Act: If an employee is caring for a close relative who is disabled (or merely perceived as disabled) and is treated differently than employees who are not associated closely with an individual with disabilities, that employee may be able to bring a claim for discrimination under the ADA.  (However, unlike employees who receive direct ADA protection, employees with associational claims are not entitled to ask for a reasonable accommodation.)

Federal and states laws barring gender discrimination: Both women and men may be stereotyped based on their caregiving responsibilities and may therefore bring a claim of gender discrimination if they are treated less well than comparable employees of the opposite sex.  Two parallel stereotypes come into play in these cases.  A woman may be stereotyped as uncommitted to her job and more interested in domestic responsibilities based on her caregiving role.  A man with caregiving responsibilities may be punished based on the stereotype that men do not or should not have a caregiving role.

Additional legal protections:

  • Some employees may be able to make out a claim for age or race/ethnicity discrimination if they can show that they are being treated differently from employees with caregiving responsibilities who are outside their protected class (e.g., a fifty-five year old man with caregiving responsibilities is treated differently than a younger man with similar caregiving responsibilities or a Latina woman with caregiving responsibilities is treated differently than a white woman with similar responsibilities).
  • ERISA protects an employee from being terminated because an employer wants to avoid paying healthcare costs for a dependent or spouse.
  • A handful of states have laws that protect employees with family responsibilities, although some such laws are limited to parental responsibilities.

While the laws described above provide some protections for employees with caregiving responsibilities, an AARP analysis of the legal issues that face employees with caregiving responsibilities describes legal protections for employees with eldercare responsibilities as “severely limited.”  For instance, only half of the workforce is covered by FMLA, and in general, caregiving employees have at best limited rights to seek reduced or flexible schedules or other minor accommodations.  Advocates for such employees need to be aware of the legal protections that exist and should continue to push for increased protections under current laws and for additional protections through new legislation.

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