Human Resources News & Insights

Family responsibility discrimination: New legal minefield for HR

Just what you needed: Another legal headache for HR — and this one’s just going to get more painful over the coming years.

It’s called “family responsibility discrimination.”

A recent report from the AARP and the Hastings College of the Law at the University of California sums it up: “Family caregiving concerns will have an increasing impact on both employees and workplaces because of the aging of the population and the labor force.”

The AARP/Hastings report, Protecting Family Caregivers from Employment Discrimination, focuses on the issues facing older employers who must carry the burden of caring for their elderly relatives.

But of course the issue’s bigger than that. It also includes employees taking time to care for sick children, wounded veterans returning from military service, maternity leave — workers caring for family members of all ages.

A recent study from The Center for WorkLife Law included the following disturbing data points:

  • Lawsuits filed by employees with family caregiving obligations have increased almost 400% between 2000 and 2010, a time during which the overall number of employment discrimination cases filed decreased.
  • Employees prevail in almost half of the cases, far more frequently than in other types of employment cases.
  • Verdicts and settlements in family responsibilities discrimination cases average over $500,000.
  • Cases have arisen in every state, in every industry, and at every level in organizations, and
  • Employers of all sizes have been sued, from small start-up companies to large multi-national corporations.

This trend’s symptomatic of what’s happening in today’s workplace. Employees are finding it harder and harder to juggle increasing work demands and the pressures of the home front — and that goes for men as well as women.

What’s behind these lawsuits? Report author Cynthia Thomas Calvert outlined some common causes:

  • New Supervisor Syndrome. Many family responsibilities discrimination cases are brought by employees with family care obligations who were performing well and balancing family and work until their supervisor changed.
    The new supervisors often cancel flexible work arrangements, change shifts, or impose new productivity requirements. On occasion, comments made by the new supervisors indicate that they take these actions intending to push family caregivers out.
  • Second Child Bias. In a significant subset of cases, mothers report little discrimination until they become pregnant with a second child or a multiple birth. Once a supervisor becomes aware that a female employee will have more than one child, he or she often takes preemptive personnel action, apparently based on the assumption that the employee will no longer be sufficiently committed to work because of her additional family responsibilities.
  • The Elder Care Effect. In a growing number of cases, employees are discriminated against because they take time off to care for their aging parents. As in “second child” bias cases, supervisors in elder care cases often act preemptively, seemingly based on the assumption that the employees’ commitment to work will be affected.

That’s certainly not an exhaustive catalogue of the ways caregivers can be handled improperly, but it does provide HR pros with some guidance as to where the major pitfalls lie.

What else can HR do? A few common-sense suggestions:

  • Reinforce with supervisors the importance of avoiding inappropriate comments and actions, and avoiding making decisions based on stereotypes
  • Make sure managers are aware of any state or local regs pertaining to caregivers
  • Evaluate employees on performance, without considering time lost to protected leave, and base judgments on specific, pre-agreed upon criteria
  • Review your leave policies to make sure they don’t inadvertently have a negative impact on caregivers, and
  • Have a clear, strong policy for receiving and handling complaints of discrimination and harassment involving caregivers.

 

 

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