According to the National Alliance for Caregivers, more than 65.7 million Americans are involved in family care giving. That’s over 29 percent of the nation currently caring for relatives over the age of 50, sick or disabled family members, relative with special needs or children and young adults. Caring for family members is nothing new in America. However, the rising number of those forced to provide care and maintain full-time or part-time positions at work is raising a few eyebrows.
More and more workers are faced with making tough decisions between career and caregiving which can sometimes result in joblessness. Employees are filing an increasing number of lawsuits against discriminatory practices at work involving their caregiver status. Employers reluctant to accommodate the extra time needed to transport a parent to repeated doctor’s visits or adjust work schedules for a single parent caring for school-aged children, for instance, may be already discriminating against caregiving employees, but without a law in place for reprimand.
Not even a handful of states have laws that protect caregivers from discrimination at work. In fact only two, Connecticut and Alaska, have laws in place that specifically address the issue, with the District of Columbia not far behind. Prompted by the growing need to protect caregivers from discrimination at work, both New York and California have introduced bills, still awaiting enactment, that would prohibit such discrimination.
States Address Caregiver Discrimination
While there are currently no bills addressing caregiver discrimination at the federal level, Connecticut, Alaska and even the District of Columbia each have addressed the issue with prohibitive legislation. Connecticut’s statute does so in a rather roundabout way, by preventing an employer from prying into an employee’s family obligations through work inquiries.
Alaska law prohibits employment discrimination based on parenthood, thus covering the growing number of workers caring for school-aged children, but failing to address the remaining groups of caregivers which also need protection, such as employees caring for elderly relatives.
In the District of Columbia, the issue is addressed through a prohibition on employment discrimination based on “family responsibility.” D.C., as well as at least 55 other municipalities and local laws, prohibit caregiver discrimination using this term. Bills are in place with other states and cities, however, though they are few in number.
Protecting Caregivers in New York City
New York City’s current bill would address caregiver discrimination in a wholesale way. The bill would place “caregiver status” on par with the familiar civil rights categories of race, religion, color, national origin, disability and sex. If enacted, the bill would cover workers who provide care in a “dependent relationship” with disabled individuals and those caring for children. It would also require employers to adhere to requests for reasonable accommodations from caregiving employees.
Protecting Caregivers in California
In California, caregiver advocates in the legislature have submitted Senate Bill 404 for review, aiming to protect caregiving employees from discrimination in the workplace. The bill, introduced in 2013 by Senator Hannah Beth Jackson (D-Santa Barbara), would add “familial status” to the list of protected categories in the Fair Employment and Housing Act (FEHA).
According to the California Senate Judiciary Committee, employees facing family responsibility discrimination have used other federal statutes, such as the Family and Medical Leave Act (FMLA), Title VII of the Civil Rights Act and even the Equal Pay Act, to address the issue, but the process has “proven to be difficult and complicated.” Where there is no protection at the federal level, litigation is a “torturous” path for employees to take.
The Committee notes a study conducted by the University of California-Hastings Center for Worklife Law from 1996-2005. The study examined the number of family responsibility cases brought by employees with caregiving duties to children or elderly relatives. The study found a 400 percent increase in the number of caregiver discrimination cases since the previous decade.
The FEHA already prohibits the discrimination in housing against individuals based on familial status, but has not yet been amended to add this same protection in employment, although previous efforts have been made. In 2007, SB836, which would have added the protected category “familial status” to the FEHA, was vetoed by California’s Governor Brown. Other bills such as AB 1001 and AB1999, similar in nature to SB 404, have all had difficulty reaching enactment in the past.
SB 404 would protect employees covered by the FEHA who provide medical and supervisory care to a family member, defined as a child, parent, spouse, domestic partner, parent-in-law, sibling, grandparent, or grandchild. Currently, the FEHA applies to companies with 5 or more employees.
The EEOC Addresses Caregiver Discrimination
In recent years, the EEOC has released enforcement guidance for employers concerned about caregiver discrimination. According to the enforcement guidance, the chance that discrimination on the basis of caregiver status will occur has increased due to changing workplace demographics and greater female participation in the workforce. The guidance outlines a number of circumstances in which caregiver discrimination could occur, including subjective decision making and stereotyping based on an employee’s association with a disabled family member.
The guidance also highlights the way in which disparate treatment relates to employee caregivers. Disparate treatment describes when a employee caregiver is subjected to violations of the EEO laws. For instance, unlawful disparate treatment may occur when an employee caregiver is also discriminated against based on his or her race or national origin or based on an association with a disabled relative.
Future Impact of Current Caregiver Discrimination Bills
While the new bills in New York and California await enactment, legislators, lawyers, employers and employees can reflect on the future impact of these laws. As discrimination against caregivers in the workplace becomes more and more prevalent, lawyers can expect more cases on the docket addressing the issue and employees can expect an even greater push for increased protection.