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Can I get a Baby Boomer sandwich, hold the caregiver discrimination?

August 10th, 2009  |  Deborah Hammonds

>This isn’t your regular bacon, lettuce and tomato sandwich, people … Baby Boomers have found themselves part of a new “club” called the “sandwich generation” – in the middle of caring for their parents on the top and their children on the bottom. Faced with their work responsibilities, along with eldercare and childcare duties, more of these employees are filing lawsuits asserting that they have been discriminated against because of their caregiving obligations. The Center for WorkLife Law at the University of California, which educates stakeholders on caregiver discrimination, found that such lawsuits have risen by 400 percent in the last decade. It is clear that caregiver discrimination is an emerging workplace issue, but how can employers protect themselves from these lawsuits?

The EEOC has taken steps to educate both employers and employees about this developing area of the law, first through enforcement guidance about what federal equal employment opportunity (EEO) laws may apply to caregivers, and then with a best practices document on what employers can do to avoid liability for caregiver discrimination.

Caregivers, in and of themselves, are not a protected class. No federal EEO statutes prohibit discrimination based solely on one’s caregiver status. However, employers may have legal obligations towards employees with caregiving responsibilities under the Title VII, the Pregnancy Discrimination Act, the Family and Medical Leave and the Americans with Disabilities Act. Examples of caregiver discrimination include: (1) reassigning a female employee to less-desirable projects based on the assumption that, as a new mother, she will be less committed to her job; (2) limiting a pregnant employee’s job duties based on pregnancy-related stereotypes; (3) denying a male caregiver leave to care for an infant under circumstances where such leave would be granted to a female caregiver; and (4) refusing to hire a worker who is a single parent of a child with a disability based on the assumption that caregiving responsibilities will make the worker unreliable. There are many others.

The EEOC has also issued employer best practices for employees with caregiving responsibilities. The document provides recommendations for creating workplace policies aimed at removing barriers for workers with caregiving responsibilities. Examples include personal or sick leave policies that allow employees to use leave to care for ill family members, providing flexible work arrangements and part-time opportunities with proportional compensation and benefits and creating equal opportunity policies that address unlawful discrimination against caregivers. For some employers, if they can do so in these economic times, the best defense against caregiver discrimination lawsuits is a family-friendly workplace that offers flexible work arrangements, according to the EEOC.

Employers, however, have not lost the ability to discharge, discipline, demote, not promote, transfer or reprimand employees for legitimate business reasons. This means caregivers can still be fired for not being able to perform their jobs, just like any other employee. Make sure your reason for the discharge is not discriminatory. Other essential tips from the EEOC include, providing in the policy, examples of illegal conduct and identifying a contact person for questions or complaints. In addition, because this is an emerging area of the law, the EEOC advises that employers train managers about caregiver discrimination.

While the EEOC’s advice is helpful, be careful that the workplace policy you draft does not unintentionally cause more harm than good. First and foremost, remember your workplace as a whole. A policy intended to benefit only caregivers could have the unintended consequence of discriminating against employees who are not caregivers. For example, an employer that offers flexible work arrangements, like telecommuting, only to those employees who have primary childcare responsibilities may be discriminating against its male workforce. Federal and state wage and hour laws may also have an impact on your policy. It is always a good idea to make sure to run the policy by your employment law counsel before it is disseminated to employees.

Stayed tuned with this one — it is only going to get more complicated. State and federal legislators are continuing to introduce more family-friendly workplace bills (paid sick leave, paid family leave, academic activities leave, domestic violence leave, family leave insurance) at a rapid pace. And, this issue is on the Obama Administration’s radar. During the 2008 campaign, Obama committed to supporting the EEOC guidance on caregiver discrimination.