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Caregiver discrimination at work

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Caregiver discrimination is also known as family responsibilities discrimination. It means that an employer is treating an employee differently in the workplace because of the employee's responsibility to provide care for family members. Employers often discriminate based on family responsibilities when they refuse to hire, deny promotions, harass, pay less, or otherwise take negative employment actions against an employee because of the employee's family responsibilities. A knowledgeable employment lawyer can help you determine whether you have been a victim of this kind of discrimination.

Caregiver responsibilities may include caring for a spouse, child, or parent. They can include being pregnant, or even the chance of becoming pregnant, as well as caring for a disabled child, sibling or an aging parent. Family responsibilities discrimination can affect almost any applicant or employee. Family responsibilities discrimination is often present with marital status or family status discrimination, when unmarried and married couples are treated differently.

It is important to note that even though caregiving responsibilities disproportionately affect working women, protections apply to all employees, including men. The terms “family,” “caregiver” and “caregiving responsibilities” are not limited to women and they extend beyond children and spouses. They cover any individual for whom the employee has primary caretaking responsibilities.

There are many stereotypes and biases about caregivers that may result in unlawful conduct. For example, employers might assume that male workers do not, or should not, have significant caregiving responsibilities. They might deny male employees, but not female employees, requests for leave related to caregiving responsibilities. As well, employers might presume that female employees prefer, or should prefer, to spend time with their families rather than time at work. And many employers also assume that female employees with caretaking responsibilities will not be productive and successful in a fast-paced environment.

Many employers and supervisors believe that female workers cannot do their jobs if they are pregnant or parenting. That is an unlawful sex-based stereotype. In 2017, a federal judge ordered an employer to pay nearly $120,000 after the EEOC sued it for pregnancy discrimination. The lawsuit alleged that the employer withdrew its offer to promote a female employee after she announced her pregnancy and was told that the owners of the company did not think that a pregnant woman could handle the stress or long hours of a management position.

Many family responsibilities discrimination cases have common fact patterns. Some of these include firing pregnant employees because they are pregnant or will take maternity leave, failing to promote pregnant women or women with young children, and instead giving promotions to women without children or fathers instead of more qualified women with children, giving parents work schedules that they cannot meet for childcare reasons while giving nonparents flexible schedules, making up work infractions or performance deficiencies to justify dismissal of employees with family responsibilities, penalizing employees who have lawfully taken time off to care for aging parents, and promoting men over engaged or married women for fear that they will become pregnant.

If you have a job and family caregiving responsibilities, you may be affected by caregiver discrimination, especially if you are a woman with children. Studies have shown that they are 80% less likely to be recommended for hire, nearly 95% less likely to be promoted, and are generally offered much less in salary for the same position as a similarly situated male.

Men can also face family responsibilities discrimination in the workplace when they seek to actively care for their children or other family members. Such discrimination against men can take a variety of forms, for example some employers have denied male employee's requests for leave for childcare purposes even while granting female employee's requests.

You should be concerned if your employer asks you in a job interview whether or not you are married and have children. The question is not necessarily unlawful by itself, but it sheds light on whether the employer has concerns about your caregiving responsibilities, even if they would not impact your ability to perform the job. This is particularly true if you are a woman. Stereotypes that female caregivers should not, will not, or cannot be committed to their jobs are sex-based, and employment decisions based on such stereotypes are a form of unlawful gender discrimination. Below is an example of how that discrimination could look in practice.

Jane, a recent business school graduate, is interviewed for a position as a marketing assistant for a public relations firm. At the interview, David, the manager of the department with the vacancy being filled, notices Jane's wedding ring and asks, "How many kids do you have?" Jane tells David that she has no children yet but that she plans to once she and her husband have gotten their careers underway. David explains that the duties of a marketing assistant are very demanding, and rather than discuss Jane's qualifications, he asks how she would balance work and childcare responsibilities when the need arose. Jane explains that she would share childcare responsibilities with her husband, but David responds that men are not reliable caregivers. David later tells his secretary that he has concerns about hiring a young married woman - he believes she might have kids, and he doesn’t believe that being a mother is compatible with a fast-paced business environment. A week after the interview, Jane is notified that she has not been hired.

Believing that she was well qualified and that the interviewer's questions reflected gender bias, Jane files a sex discrimination charge with the EEOC. The investigator discovers that the employer reposted the position after rejecting Jane. The employer said that it reposted the position because it was not satisfied with the experience level of the applicants in the first round. However, the investigation showed that Jane easily met the requirements for the position and had as much experience as some other individuals recently hired as marketing assistants. Under the circumstances, the investigator determines that the employer rejected Jane from the first round of hiring because of sex-based stereotypes in violation of Title VII.

Some of the cases filed in this area have shocking facts. In one case, a female employee was told it was “too bad” she got pregnant after the promotion that had been promised her was given to a man. In another, after applying for a position, a father was told that the job had been “specifically designed for single males without children.” And in yet another, a woman was instructed to accept a demotion or go on leave because she couldn’t do the job of co-director while pregnant. All of these facts would support discrimination claims.

In general, you should be alert to potential discrimination if you have not been hired, promoted or have been terminated and you have children at home, a sick spouse, are a single parent, or if you have any sense that you employer believes that someone with children or who is caring for a relative with a disability will not be a reliable, or believes that mothers should stay home with their children.

Contact Pittsburgh employment lawyer Charles A. Lamberton if you believe you have been discriminated against because of caregiving responsibilities.