Caregiver Discrimination at Work

Valuing Family in the Workplace: 

The Law’s Response to the Work-Life Balance

By Penn Dodson

 

            Imagine this:  you are the mother of two children, one of whom is disabled.  As a family you decide that both parents need to work full time to have adequate health insurance coverage, to make enough money to provide for your family and in particular the expenses associated with your child’s disability, generally to provide the quality of life you want, and to do work which you find satisfying.  You both choose your jobs carefully, learning all you can about the companies, especially the leave and flex time policies.  You follow every procedure to the “T,” equitably sharing the responsibilities of doctor appointments, teacher workdays, and parent-teacher conferences.  You never go over your allotted amounts of leave.

            After a couple of years, you suddenly realize that you’ve been passed over for two big promotions that your less competent co-workers have gotten.  A month later the hammer falls:  your husband’s boss tells him, “I’ve got to have someone reliable, not someone who has to play Mommy once a week” and fires him.

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            As women have increasingly joined the workforce and the aging population has begun living longer, there are more people to care for and fewer people to provide care than there were 50 years ago.  At least in part to pay for the needs of dependents such as children, elderly parents, and sick or disabled family members, working age people have flocked to the workforce in droves.  Companies have discovered that with favorable sick leave, flexible work schedules, in-house childcare, and other family-friendly policies, they have been better able to attract top talent.  Generally speaking, those who provide care often show themselves to be responsible individuala, and they also have the added incentive of needing to remain in stable employment since peole depend on them, which promotes lotalty.  These employers have enjoyed the benefit of the talents of more women and other caregivers.  In turn, by family members working to support their dependents, pressure on the government to take care of these vulnerable populations is alleviated.

            As a society we are to the breaking point – in the ever-elusive “work-life balance” dilemma, something has to give.  Under this framework, where employers fail to follow their own policies or penalize employees for utilizing the benefits offered to them, the law is increasingly holding companies accountable.  Following are just a few examples of some of the kinds of claims being made.

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One of the largest awards to date was one in Illinois in which a male custodian received a $11.65 million jury verdict.  The man had taken Family and Medical Leave Act (“FMLA”) leave to care for his elderly parents who were in poor health.  When he came back to work, his employer, which was a hospital of all things, established new performance standards that they applied very rigidly toward him but not to others in similar positions, and he was fired.  He sued his employer under the provisions of the FMLA which prohibit retaliation for taking FMLA leave.  Schultz v. Advocate Health & Hosp's Corp., 2002 WL 32154732 (N.D. Ill). 

Another caregiver case was brought by a female school psychologist who, despite consistently having outstanding performance reviews, had been denied tenure after having a child.  There was evidence that school district personnel said that it was not possible for a person to be a good mother and have the plaintiff's position and questioning how she could perform the job with "little ones."  She argued that her employer made stereotypical assumptions about her ability and commitment to return to work after having a child. The judge agreed that this was an example of gender stereotyping which constituted illegal gender discrimination.  Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004).

In another case, a male police officer in Maryland was denied FMLA leave to care for his wife and newborn child after they left the hospital following a difficult birth.  His supervisor told him that his wife would have to be "in a coma or dead" for him to qualify as the family's primary caregiver. A jury awarded over $600,000.  Knussman v. Maryland, 272 F.3d 625 (4th Cir. 2001).

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            Employers have begun to recognize the carrot and the stick associated with caregivers.  By implementing and consistently following family-friendly policies, many companies have not only avoided being sued but have benefited from retaining bright, loyal caregiver employees rather than suffering the so-called “brain drain” of employees leaving the workforce when caregiving responsibilities arise.

            Meanwhile, workers who have family responsibilities struggling to maintain the precarious work-life balance as best they can have begun to collaborate with their employers to find creative solutions to meet their needs while remaining productive at work.  When pressed, they have begun to assert their rights, putting their foot down and saying with confidence that their families come first, and their jobs should not be in jeopardy because of it.  And the courts have heard, and often agreed with them.

 

 

For further reading:

• Williams, Joan. Unbending Gender: Why Family and Work Conflict and What to Do About It (Oxford University Press, 2001).
• www.worklifelaw.org - WorkLife Law Center of the University of California, Hastings College of the Law
• http://www.eeoc.gov/policy/docs/caregiving.html - Equal Employment Opportunity Commission “Enforcement Guidance: Unlawful Disparate Treatment Of Workers With Caregiving Responsibilities”

  

Penn Dodson, an employment law attorney with the downtown Athens firm of Timmons, Warnes & Anderson, LLP.  Penn can be reached at penndodson@yahoo.com or 706-548-8668.