REPOST ARTICLE SOURCE:
An employee is fired when he asks for leave to care for his chronically ill father. Another employee is denied leave when her employer asserts that it is not her responsibility to care for her ailing mother as long as her father is still alive. And an employee is called lazy and then fired after taking leave to care for his mother, who is near death.
These are three real-life examples of “caregiver” discrimination from a recent report, “Protecting Family Caregivers from Employment Discrimination,” by the AARP Public Policy Institute and the Center for WorkLife Law at the University of California, Hastings College of the Law. Note the care recipients are aging parents, not kids. The report specifically addresses workplace discrimination faced by working caregivers of older adults and calls for an end to stereotyping caregivers as less competent and committed than other workers and instead treating them on par.
For employees facing discrimination, the report serves as a quick guide to what sorts of protections are out there now. And for employers who aren’t ready to handle these cases with compassion, it serves as a warning that advocates for workers who juggle their day jobs with caring for an aging parent are calling for more legal protections. The extreme proposed solution: “family caregivers” as a protected class.
As it stands now, working caregivers who encounter bias based on their caregiving responsibilities do have limited protections under federal employment laws and a patchwork of local laws. Employees can sometimes file claims under the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Employee Retirement Income Security Act of 1974 (ERISA). If sex or age come into play, they can turn to Title VII of the Civil Rights Act of 1964 or the Age Discrimination in Employment Act of 1967 (ADEA).
But these laws leave huge gaps. For example, the FMLA covers only about half of all workers – it applies only to employers of 50 or more within a 75-mile radius. The report cites the case of a hospital worker, who was fired while caring for his father with Alzheimer’s disease and mother with congestive heart problems and severe diabetes, and won a jury verdict of $11.65 million. In another care, a paralegal, who was fired within minutes of saying she needed to leave work because her father suffered a stroke, and had her FMLA case dismissed because she had not worked for her employer for the full year required under FMLA.
Local laws go further, and they often apply to small employers. The report includes a list of 67 localities in 22 different states that have family responsibility discrimination laws. Only seven of those specifically protect working caregivers of older adults (as opposed to caregivers of children). Yet 23 of the laws are vague enough to seemingly encompass elder care. Legislation that would expressly prohibit family responsibility discrimination, including discrimination against workers with elder care responsibilities, is pending in California and New York City.
Changing demographics (more older women in the workforce, an aging population) mean more workers with eldercare responsibilities than ever before. That means more potential cases of discrimination. Indeed, the number of family responsibility discrimination lawsuits grew from 444 cases in 1989 to 2,207 cases in 2008, and a small—but growing—number of cases involve workers caring for older family members, according to a database kept by the Center for WorkLife Law.
The Equal Employment Opportunity Commission (EEOC) has caregiver discrimination on its radar. It issued enforcement guidance back in 2007 and followed up with a report in 2009 on employer best practices, and a meeting in February at which Joan Williams of the Center for Worklife Law and Lynn Feinberg of the AARP Public Policy Institute (co-authors of the report) both testified.
The advocates are pressing on, with policy proposals including expanding the FMLA to cover workers in small businesses, providing paid leave for working caregivers to care for an ill child, spouse, or parent or to take family members to routine medical appointments, and requiring employers to provide employees with a reasonable number of paid sick days to care for themselves or a family member.
Their pleas to employers: adopt policies barring caregiver discrimination, provide workplace flexibility, educate supervisors and managers, and offer eldercare support and referral services.