Time to Be Flexible

Avoiding Discrimination Claims Based on Caregiver Responsibilities

By KARINA L. SCHRENGOHST and CRYSTAL BOATENG

Over the past 30 years, the demographics of the workforce have changed. Women comprise approximately half of the working population, many of whom are working mothers. In addition, although women primarily continue to carry caregiver responsibilities, gender lines related to family and caregiver responsibilities have shifted, and the number of men who take on or share in primary caregiver responsibilities continues to increase.

Further, many employees, both female and male, have caregiver responsibilities for elderly parents and other family members, which is a trend that will likely continue to increase as the Baby Boomer population ages. Additionally, a growing number of employees face both child-care and elder-care responsibilities simultaneously. Finally, some employees have caregiver responsibilities for children, spouses, parents, and other family members who are disabled.

Whether they have children, elderly parents, disabled spouses or family members, or a combination of caregiver roles, many employees have family and caregiver responsibilities that they must balance with work responsibilities. What does that mean for employers? In a nutshell, it means that many employees are asking their employers for flexible work schedules and leave (sometimes beyond that required by state and federal law).

‘Caregiver responsibilities’ is not a protected category under state or federal law. However, despite the absence of state or federal laws that prohibit discrimination based on family or caregiver responsibilities, claims based on caregiver discrimination may be pursued under the umbrella of other protected categories, such as sex or race. This is because employment decisions that give rise to discrimination claims based on caregiver responsibilities are often based on assumptions and stereotypes about gender roles and race or ethnicity. Consequently, caregiver discrimination is frequently unintentional, which makes it even more challenging for employers.

Supervisors sometimes make assumptions about how committed, ambitious, and dependable an employee with caregiver responsibilities is. These assumptions impact the employment decisions they make. For instance, female caregivers may be perceived as more committed to caregiving than to their jobs and as less competent than other employees, regardless of how their caregiver responsibilities actually impact their work. As a result, women may be denied employment opportunities or other benefits available to men.

On the flip side, male caregivers may be perceived to be poorly suited to caregiving. As a result, men may be denied parental leave or other benefits that are available to women. Stereotypes may further limit employment opportunities for people of a particular race or ethnicity.

How can employers reduce the risks associated with discrimination claims based on caregiver responsibilities? To begin with, employers should consider adopting best practices such as:

• Developing, disseminating, and en-forcing a strong policy of equal employment opportunity;
• Focusing on specific, job-related qualification standards;
• Ensuring that employment decisions are based on such standards and are well-documented; and
• Investigating complaints of caregiver discrimination promptly and thoroughly.

In addition, employers need to understand what their obligations are (and aren’t) under state and federal law to provide leave for caregiver responsibilities. Some employers may have an obligation to provide leave under the federal Family Medical Leave Act (FMLA).

In addition, in some states, including Massachusetts, some employers may have an obligation to provide leave in addition to that required under the FMLA. Under the Massachusetts Small Necessities Leave Act, an employee who is eligible for FMLA leave is also eligible for a total of 24 hours in a 12-month period to accompany his or her child or elderly relative to medical appointments or appointments for other professional services related to the elder’s care.

Further, employers would be wise to consult with employment counsel when developing or revising policies and procedures that may impact employees with caregiver responsibilities to ensure compliance with state and federal law.

Finally, it is important for employers to train managers and supervisors about company policies and procedures, the company’s legal obligations, and how to handle requests for a flexible schedule and time off, to ensure that employment decisions concerning employees with caregiver responsibilities are consistent with state and federal law.

Karina L. Schrengohst, Esq. is an attorney at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm;  (413) 586-2288; [email protected]. Crystal Boateng is a law clerk at Royal LLP.