Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

CNN has reported that there are a growing number of male caregivers – and that they are suffering gender discrimination in the workplace.

We discussed the issue of family caregivers being subjected to employment discrimination in our September 3rd and September 4, 2012 blogs. Noting that the population is aging but must work at paid jobs during the economic downturn, and also work without pay providing care for elderly parents and other family members, we cited studies that they are treated disparately in the paid workplace. “It may take the form of limited flexibility, denied leave, or even a pink slip, but whatever the case, more instances of employers treating employees with caregiving responsibilities less favorably than other employees are coming to our attention.”
 

A 2011 MetLife study stated that the number of adult children who care for parents has tripled over the past 15 years, and an earlier MetLife study found that such caregivers frequently suffer from depression, diabetes, heart problems and hypertension. An AARP Public Policy Institute report claimed that there is an “emerging trend” of caregivers of older adults facing increasing discrimination in the workplace.  While the AARP study described the hallmarks of what they call “family responsibilities discrimination” as limited flexibility, denial of leave, or even termination, the 2011 SHRM survey reported that cost-conscious employers are, in fact, cutting eldercare benefits, which benefits have been shown to reduce absenteeism, increase employee loyalty, improve employee health, and reduce employee turnover.

Now, with men becoming a larger percentage of family caregivers, employers are resisting accommodating them based upon the old stereotype of males being the "breadwinners."  Between 2006 and 2010, the number of family responsibility discrimination cases brought by males increased by 300% as compared to the period  2001 and 2005.  An EEOC attorney said that "Employers are often more relaxed in applying blatant sexual discrimination against male caregivers.  When invoking parental leave, some supervisors might say 'Oh no, that's for women.' There are some pretty entrenched stereotypes."

The times they are a changin'. 

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The AARP Public Policy Institute has just issued a report entitled "Protecting Family Caregivers from Employment Discrimination," and it claims that there is an “emerging trend” of caregivers of older adults facing increasing discrimination in the workplace.

An aging population must work at paid jobs, and also work without pay providing care for elderly parents and other family members, and are, according to the report, treated disparately in the paid workplace. The evidence of discrimination? “It may take the form of limited flexibility, denied leave, or even a pink slip, but whatever the case, more instances of employers treating employees with caregiving responsibilities less favorably than other employees are coming to our attention.”
 

The report cites compelling statistics of an aging workforce struggling to also care for elderly family members: The average American family caregiver is female, 49-years old, works outside the home, and spends almost 20 hours a week providing care for her mother. Moreover, 49 percent of the workforce expects to provide eldercare within five years.
 

With stats like that, we may reasonably expect an increase in lobbying efforts to prohibit “family responsibilities discrimination” in the workplace. 
 

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"Lactation is not pregnancy, childbirth, or a related medical condition," held a Texas federal judge recently in denying the Title VII claim of a woman who alleged that she was fired for seeking to pump breast milk while on the job. We suggested in our February 9, 2012 blog that in our opinion this decision was headed for the dustbin of history.

As if to echo this opinion, the EEOC just conducted a meeting yesterday to follow up on its issuance of a 2009 guidance entitled “Employer Best Practices for Workers with Caregiving Responsibilities.”  At yesterday’s meeting, experts noted that notwithstanding the Pregnancy Discrimination Act and the FMLA, the number of pregnancy discrimination charges has spiked in recent years. One panelist argued that the EEOC should provide further guidance as to the rights of pregnant women and women who had given birth, to the end that employers be directed as to their duty to accommodate women “who require adjustments to work rules as a result of pregnancy or childbirth.” 

It would appear that it is only a matter of time until this occurs, and employers should anticipate this by including such reasonable accommodations in their practices and policies.       

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There have been a number of studies and cases filed recently which demonstrate, once again, that the workplace is merely a microcosm of society at large, and reflects the ever-changing tensions, fault lines and biases inherent in a diverse society.     

For example, despite the fact that Muslims make up only 2% of the United States population, religious discrimination claims made by Muslims to the EEOC in 2009 accounted for 25% of such claims. It is not difficult to understand that world and national religious and ethnic tensions become employment issues as biases that are aired on national news shows trickle down to the workplace.

A recent study by the Center for WorkLife Law at Hastings Law School in California, written by Stephanie Bornstein and entitled “Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers,” highlights the plight of low-wage workers, typically single parents, who must take care of ill or aged family members. Frequently these workers are former social service recipients who have entry-level positions, or hold down many jobs, and who get fired because they need to take time off as caregivers. Public policy aside, there are laws which protect such workers, such as the FMLA, under which employers have frequently been socked with big judgments by such workers. The report recounts such cases, and notes that the success rate for “caregiver discrimination lawsuits” is higher than other discrimination lawsuits, and that the average verdict in such cases is $500,000. Employers take note!

Finally, a suit that is the first of its kind has been filed in New Jersey by a transgendered man who was fired shortly after starting a job as a urine monitor at a drug treatment center – a position which is open only to men.  Neither sexual orientation nor gender status is a protected class under Title VII, and this lawsuit was therefore brought under state law.   See El’Jai Devoureau v. Camden Treatment Associates

As a postscript to the last point, it should be noted that although Title VII does not cover lesbian, gay, bisexual or transgendered employees as such, some employees have brought harassment suits claiming “gender stereotyping” as a form of discrimination based upon gender, and not sexual orientation nor gender status. However, such cases must fall within a very narrow set of facts – i.e., the claim must be that the employer’s adverse action was based not upon sexual orientation or transgendered status, but upon a failure by the employee to conform to gender stereotypes.   

See the following cases:

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

Prowel v. Wise, 579 F.3d 285 (3d Cir. 2009)

Lewis v. Heartland Inns, 591 F.3d 1033 (8^th Cir. 2010)

Smith v. Salem, 378 F.3d 566 (6^th Cir. 2004)

Barnes v. Cincinnati, 401 F.3d 729 (6^th Cir. 2005)

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