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The growing risk of ‘caregiver discrimination’

by on
in Discrimination and Harassment,Human Resources

Under federal anti-discrimination law, “caregiver” is not a protected characteristic like race, age or religion. However, the EEOC has taken the position that unfair treatment against workers with caregiving duties may, in certain circumstances, constitute job-bias based on sex, disability or other character­­istics.

Starting last year, the EEOC made a big public splash to warn employers about denying leave, job opportunities or equal treatment to pregnant women, parents (both male and female) and other caregivers.

The result: A public hearing and a series of best-practice advisories for employers on the legal risks of so-called Family Responsibility ­Dis­­­­crimi­­nation.

“Employers should not make decisions based on stereotypes and presumptions about the competence and commitment of these workers,” an EEOC commissioner said at last year’s hearing.

Advice: Remind supervisors that treating employees (or applicants) less favorably because they have caregiving responsibilities can quickly trigger a lawsuit—and that’s more true now than ever. Your management training sessions should include in­­for­­mation on the FMLA, ADA and other laws that affect the issue.  

Recent case: Lisa would get an earful from her bosses when she had to take leave on short notice to care for her daughter, who has special needs. Lisa noticed that her male supervisor didn’t criticize the male employees when they were absent due to child-care problems.

When she complained about the apparent bias, Lisa found herself working a different shift and missing out on a training program that could have meant a promotion.

She sued, alleging sex discrimination and retaliation. The em­­ployer argued that nothing that happened to Lisa rose to that level. The court disagreed and sent the case to trial. (Salvato v. Smith, et al., No. 13-2112, ED PA, 2013)

Final note: Supervisors who voice antiquated beliefs about who should care for children can create potential liability. Even a single comment about working mothers and the effect of their child-care responsibilities on work may spur a lawsuit.

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