New York Employment Lawyer Blog

According to a recent article in USA Today, as the number of employees with elder and child care demands grows, more workers are filing lawsuits claiming they've been discriminated against on the job because of their family caregiving obligations.

The federal Equal Employment Opportunity Commission (EEOC), which recently issued its first guidance for employers about the issue, reports an "upsurge" in cases — with many resulting in awards to plaintiffs. The guidance provides examples of how bias can occur so that employers are aware of the risk.

The type of discrimination is growing so fast, it's been dubbed "family responsibilities discrimination." The Center for WorkLife Law at the University of California, which tracks these lawsuits, says such cases have risen by 400% in the last decade.

"This is on employers' radar screens," says James Matthews, a Philadelphia-based employment lawyer. "Law firms are really talking to their clients about it."

Cases usually involve an employee who must care for a child, elderly parent or disabled spouse. The employee may claim that he or she was retaliated against, not hired or discriminated against by an employer because of his or her caregiving responsibilities.

Pregnancy bias claims grow

The cases also may involve male caregivers being treated more favorably than female caregivers or gender stereotyping, such as discriminating against an employee because she is a new mother. Overall, cases claiming bias against pregnant employees filed with the EEOC have risen from 3,977 in fiscal year 1997 to 4,901 in 2006.

One recent case is an EEOC lawsuit filed in September against news and financial services company Bloomberg. The lawsuit alleges the company demoted and reduced the pay of female employees after they announced their pregnancies and after they took maternity leaves.

Some women were replaced by more junior male employees, the EEOC says. The lawsuit also alleges that the same pregnant women and new mothers were excluded from management meetings.

I recently came across a very interesting article on Carl Bosland's blog. This article discussed the recent case of Bell v. Prefix, Inc., No. 05-74311, 2007 U.S. Dist. LEXIS 52837 (E.D. Mich. July 23, 2007) where the issue of whether the FMLA covers an employee's need for leave to provide psychological comfort and care to an unconscious parent was addressed. There, Bell's father fell after suffering an aortic aneurism. He was granted FMLA leave to attend to his father's health care and hospitalization. Bell left work early to be with his father the night before surgery. He discussed the surgery with his father. He returned to visit his father after the surgery. His father fell into a coma after the surgery. He remained in the coma until his death a few weeks later. On several occasions, Bell was granted FMLA leave to visit his father. His father was at all times incoherent and unable to visibly react to Bell's words. During these visits, Bell would discuss his father's condition and care with hospital staff, including approval of care. Bell was subsequently terminated allegedly due to a downsizing of his department. He sued, alleging that his dismissal was due to his use of FMLA leave.

Prefix argued that Bell's leave was not protected by the FMLA. It argued that he did not provide physical or psychological care because his father was comatose. Under established case law, merely visiting a sick parent does not, the employer argued, constitute providing care within the meaning of the FMLA. The court disagreed.

The time Bell spent with his father was psychological care. The court rejected the argument that the failure of a parent to visibly respond demonstrates that psychological care was not given during their post-surgery interactions. "Taken to its logical conclusion, Defendant's argument would leave the FMLA without an allowance for psychological care if the loved one was unable to visibly react to it." The court also noted that Bell did provide psychological care to his father before surgery when his father was conscious. It also noted that he participated in medical decisions for his father post-surgery, which is also covered by the FMLA.

Although federal law does not specifically prohibit discrimination against those with family caregiving responsibilities, new enforcement guidance from the Equal Employment Opportunity Commission explains how existing laws prohibiting discrimination based on gender, pregnancy or disability can apply to caregivers, as well. It offers examples: denying a female worker with young children an opportunity that is available to men with young children or refusing to hire a worker who is a single parent of a child with a disability on the assumption that caregiving responsibilities will make the worker unreliable.

As a result of these guidelines, I believe that we will likely see an increase in the number of caregiver discrimination suits filed by the EEOC.

EEOC employees will be trained in how to recognize caregiver discrimination and connect it to current laws. "It really gives our people a chance to see something new," said Stuart Ishimaru, an EEOC commissioner.

First, it puts employers and employees on notice "that you cannot treat mothers and other caregivers differently based on assumptions of how they will or should behave," she said. "That's important because bias against mothers is the most open form of discrimination in the workplace today."

The guidance also shows that though discrimination against mothers is the "most common form of caregiver discrimination, it's not the only form," she said. The guidance gives examples of discrimination against adults caring for nieces, nephews, grandchildren, parents and spouses, and also states clearly that caregiver bias affects men as well as women.