More employers face caregiver-related suits

ByStephanie Armour, 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.

Bloomberg spokeswoman Judith Czelusniak says in an e-mail that the allegations are unfounded and the company is generous with benefits, especially for working mothers. While federal law requires that employers give 12 weeks unpaid maternity leave, Bloomberg provides 12 weeks of fully paid maternity and family medical leave plus the option of four weeks unpaid. It also offers such benefits as free backup child care, free child care referrals, adoption benefits and lactation facilities.

The family caregivers issue is growing along with the rise of the "sandwich generation" — people who care both for children and an aging relative. Nearly a third of families have at least one family member with a disability, and about one in 10 families with children under 18 years of age includes a child with a disability, according to the most recent U.S. Census.

"(Discrimination against caregivers) is very common," says Karen Krivit, a social worker in Philadelphia who specializes in helping families who have children with disabilities. "Some employers are fairly reasonable, though. The concern is missing work. Both sides have to be creative."

Finding solutions

Patricia Rodgers, 36, a single mother, works part time in social services and full time as a teacher's assistant while caring for her special-needs child, Jazmine, 14, who has cerebral palsy. She has sought jobs that allows her flexibility.

"I love my job, and supervisory management is very understanding," she says. "If I take off for my daughter's appointments, I schedule three or four on the same day."

But when accommodations falter, lawsuits can result. They generally fall under three areas:

•Some employees claim that they were denied leave or retaliated against for taking time off to handle caregiving of a child, which is covered by the federal Family and Medical Leave Act.

•Under the Americans with Disabilities Act, employees are protected from discrimination if they are caring for a relative with a disability. Some employees who were denied accommodations to provide care allege that employers are violating the federal law.

•Others bring claims alleging gender discrimination — for example, women with young children who say they are not given the same treatment as new fathers.

"For example, an employer may refuse to hire women with young children but not men with young children," lawyer Matthews says. "Employers have to make decisions based on the facts of a case and not on assumptions or generalizations."

Hiding caregiving duties

Advocates for caregivers say many are concerned about workplace discrimination, to the point of hiding that they care for an aging or disabled relative.

"Most caregivers have been very reticent about even bringing the topic up in the workplace," says Donna Wagner, director of gerontology and director of the center for productive aging at Towson University in Towson, Md. "They're concerned they won't be seen as a good worker."

Marion Somers, with more than 30 years of experience as a geriatric care manager, consultant and lecturer, says the issue is moving to the forefront as more employees realize they have legal rights to take some time off to care for aging relatives or children. But she says many remain afraid of the ramifications on the job.

"Employees are just now starting to speak up," Somers says. "But people are still extremely hesitant. They fear losing their job or not getting a promotion."

The new EEOC guidance also is putting employers on alert. Paul Lopez, an employment lawyer with Tripp Scott, says the guidance provides protection for employees who need to take time off from work to care for close family relatives who have serious health conditions.

"One thing is clear," Lopez, of Fort Lauderdale, says in an e-mail. "When making employment decisions in the workplace, employers should solely focus on job performance and not make assumptions or use stereotypes in making employment decisions or evaluations."

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