It can be difficult balancing work and your responsibilities at home, especially if you have a child or disabled family member. If you are fired or penalized at work because of family caregiving responsibilities, you may be a victim of caregiver discrimination.
Caregiver discrimination (or “family responsibility discrimination”) occurs when you are fired or penalized at work because of family caregiving responsibilities.These responsibilities may include:
- Child care,
- Caring for an ill or disabled family member, and
- Caring for an elderly parent.
It is an increasing problem, due to changing gender roles and our aging population. According to UC Hastings’ Center for WorkLife Law, caregiver discrimination lawsuits increased by 269% in the last decade. While women are most often targeted, anyone can be subject to caregiver discrimination.
Examples of caregiver discrimination include:
- Terminating a worker after a medical leave without cause,
- Refusing to hire or promote a pregnant woman, due to unreasonable concerns about future attendance,
- Promoting a non-parent rather than a qualified parent due to unfounded concerns about focus and dedication,
- Denying a worker a flexible work schedule, when others were allowed flexible work hours for non-caregiving activities (such as a sports league or charitable activity), and
- Denying a father’s request for paternity leave, when women’s requests are consistently approved.
- However, any adverse employment action that is based on unfounded stereotypes may be caregiver discrimination.
While there is not a specific federal law that prohibits caregiver discrimination, there are state and federal laws that give some protections. These laws include the Civil Rights Act, the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Employee Retirement Security Act (ERISA).
The Civil Rights Act and Caregiver Discrimination
The Civil Rights Act protects certain classes of people from employment-based discrimination. In caregiver discrimination cases, the Civil Rights Act can be violated when the discrimination is based on gender or pregnancy.
FMLA and Caregiver Discrimination
Under the FMLA, workers are given 12 weeks of unpaid medical leave every year. Medical leave may include caring for a disabled or ill family member and pregnancy. You can take FMLA leave incrementally (even an hour at a time). If you are protected by the FMLA, you cannot be terminated or demoted for taking medical leave.
The ADA and Caregiver Discrimination
Under the ADA, employers must allow a disabled employee reasonable accommodations in the workplace. For example, if an employer demotes a pregnant woman because of a lifting restriction, she may have a claim under the ADA. Additionally, the ADA protects individuals who are associated with a disabled person.
ERISA and Caregiver Discrimination
Sometimes, an employer bases hiring and firing decisions on insurance premiums. Under ERISA, it is illegal to make adverse employment decisions based on health insurance, disability insurance or pension rights.
For example, if an employee with a disabled child is terminated due to fear of increased insurance premiums, the employer may have violated ERISA.
State and Municipal Protections
Additionally, an increasing number of states and cities are making caregiver discrimination illegal. If your state or community has laws prohibiting caregiver discrimination, you may have additional remedies.
If you believe you are the victim of caregiver discrimination, you should document the discrimination. Keep notes about your interactions, keep copies of emails and voice your concerns (preferably in writing) to Human Resources. This will help prove your discrimination claim.
An employer may argue that its decision was based on a legitimate business reason or a “bona fide occupational qualification.” Additionally, many laws limit an employee’s recovery if there was a “mixed motive.” This occurs when an employer had both legitimate and discriminatory reasons for its actions.
There are several ways to pursue a caregiver discrimination claim. Depending on your employer’s violations, you may be eligible for monetary damages (such payment of lost wages). These cases may be complicated, due to the numerous laws involved. You may have the right to:
- File a complaint with the EEOC, or
- File a lawsuit in state or federal court.
You may have to file multiple complaints and lawsuits with a variety of courts and organizations.
Pursing an employment discrimination claim against an employer is complicated because procedural laws vary depending on where and when you file your claim. An employment lawyer will help you with the filing deadlines specific to your claim. It is also a good idea to see a work lawsuit lawyer before signing a waiver or other severance package.