Caregiver discrimination, three years later

It’s been nearly three years since the EEOC published its Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. According to a recent report published by the Center for WorkLife Law, employers that have not yet paid attention to this issue should start. The Center for WorkLife Law’s Family Responsibility Discrimination 2010 Litigation Update [pdf] paints a grim picture for employers that ignore caregiver issues or have to defend their employment practices in court. Here are the highlights:
Key Case Trends.

1. New Supervisor Syndrome—new supervisors canceling flexible work arrangements, changing shifts, or imposing new productivity requirements, with the intent of pushing family caregivers out.
2. Second Child Bias—mothers report little discrimination until they have their second child, at which point they report preemptive personnel actions based on assumptions about their commitment to their growing families over their jobs.
3. The Elder Care Effect—employers acting preemptively against employees who have to care for aging parents, again because of assumptions about the employee’s work commitment.

Types of Cases Filed

• pregnancy and maternity leave—67%
• elder care—9.6%
• care for sick children—7%
• care for sick spouses—4%
• time off for newborn care by fathers or adoptive parents—3%
• association with a family member who has a disability—2.4%

Number of Cases Filed

• The number of cases filed nationwide has increased from 13 in 1983 to 269 in 2008, with a 400% increase from decade to decade (1989 – 1998 as compared to 1999 – 2008).
• Ohio has the 4th highest number of caregiver discrimination cases filed.
• 88% of the cases are filed by females.

Success Rates

• Overall, employees win 50.4% of the time.
• But, in the Midwest, employees win 48.9% of the time.
• And, in Ohio, employees only win 46% of the time.
• The national average verdict or settlement is $578,316.

The conclusion of the Center for WorkLife Law:

This report is a warning siren for employers. The increase in family responsibilities discrimination cases indicates that employers do not yet understand their legal risks in this area. Blatantly discriminatory comments made by supervisors show a lack of recognition of employers’ obligations to treat caregivers equally, which in turn suggests a lack of direction from management and a lack of training.

Given Ohio high number of filed cases and the risk of a large damage award or settlement, this report is a warning that Ohio’s businesses should take seriously. What can companies do?

1. Ensure coverage of caregiver and family responsibity discrimination in EEO, harassment, and other policies.
2. Train supervisors and managers on how to recognize and avoid this breed of discrimination.