Workplace discrimination against employees based on caregiving responsibilities—called “family responsibilities discrimination”—is often blatant. Many employers seem to know enough not to say openly “This is no job for a woman,” but some seem to feel perfectly comfortable saying “This is no job for a mother.”
For example, one woman’s supervisor in New Mexico texted her: “You have a child who is medically disabled, you do not belong in the workplace,” according to a 2015 complaint filed by the Equal Employment Opportunity Commission. In a case tried in Colorado, a woman’s boss told her it was “too bad she had to go and get pregnant” after the promotion she had been promised went to a man.
A new report by Cynthia Thomas Calvert for the Center for WorkLife Law at the University of California, Hastings College of the Law, found a 269% increase in this type of lawsuit in the past decade. Employees won two-thirds of cases that went to trial —a far higher success rate than other employment discrimination cases—and employers paid about half a billion dollars in verdicts and settlements in the decade ending in 2015, more than double the amount paid out in the decade before.
Employers take note: discriminating against caregivers can be an expensive proposition. Here are the four main trends of the study:
1. Cases involving eldercare increased 650% over the last decade.
Men are nearly three times more likely to bring cases involving eldercare as compared with childcare: nearly 40% of cases involving eldercare were brought by men. Employees are less likely to win eldercare cases because workers have better legal protections with respect to childcare than eldercare. Still, there is plenty reason for employers to be concerned.
For example, a surgical nurse took family leave intermittently over a period of two years to care for her ailing mother. She was entitled to the leave under the Family and Medical Leave Act but was nonetheless disciplined and ultimately fired. Her supervisor allegedly noted: “Well, how much longer can she last…as sick as she is,” and, when she was fired: “You won’t have to call in ever again about momma.” The case settled for an undisclosed amount.
2. Pregnancy discrimination remains the most-common type of caregiver discrimination.
Although pregnancy discrimination has been illegal since 1978, it has increased by 315% in the past decade. Pregnancy discrimination claims frequently arise when pregnant women are denied simple workplace accommodations that would allow them to continue to work, such as giving a cashier a stool when her doctor orders her not to stand all day. A 2015 Supreme Court case gave pregnant women greater rights to workplace accommodations under the Pregnancy Discrimination Act, and federal courts also are increasingly likely to order accommodations under the Americans with Disabilities Act.
3. There has been a sharp increase in family caregiving cases brought by men.
Fully 25% of the calls to the Center for WorkLife Law’s Hotline now are from men. Men are less likely to win than women, chiefly because courts have difficulty seeing how treating fathers differently from mothers is sex discrimination. But some men win their cases. In Dean v. Champion Exposition Services a graphic designer’s lawsuit was settled after he was denied permission to work from home to care for his premature son, despite the fact that pregnant women and mothers allegedly had been allowed to work from home. Cases involving paternity leave have increased sharply, 336% over the past decade, although the number remains small.
4. Breastfeeding cases have increased by 800%.
While few cases involving breastfeeding have made it to the courts, recent court rulings may change that. For example, in Allen-Brown v. District of Columbia, when a police officer requested not to go out on patrol while she was breastfeeding because she was unable to wear a bulletproof vest, she allegedly was told to patrol or take leave. The federal district court held that breastfeeding was a medical condition related to pregnancy and allowed the case to go forward under the Pregnancy Discrimination Act. Breastfeeding employees also have new rights under some state laws and the Affordable Care Act to breaks for nursing in a clean and private place that is not a bathroom.
So what can employers do to support caregivers? Five simple lessons can help keep employers out of trouble.
- Discriminating against employees because they are mothers is sex discrimination.
- Family accommodations offered to mothers, including parental leave, must be equally offered to fathers.
- It is illegal to discriminate against employees who are caring for a person with disabilities.
- Men as well as women covered by the Family and Medical Leave Act have a legal right to take leave to care their parents.
- They should provide pregnant women with workplace accommodations and give new mothers breaks and a clean, private place for expressing milk.
These five simple lessons will make the workplace fairer for employees with family responsibilities—and will help save employers a bundle of money.
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