One small benefit for caregivers who’ve been able to work from home during the pandemic is that it helped them manage their caregiving and work responsibilities better than before. Now that more workplaces are re-establishing their in-person policies, many caregivers are worried about how they’ll manage on their return. Human resource organizations are flagging caregiver discrimination lawsuits as a potential trend in employee vs. employer litigation in the coming years. Caregiver discrimination isn’t new, but now it’s in the spotlight.
Caregiver balancing act
I lived the working caregiver struggle firsthand. Pre-pandemic, I immediately noticed a shift in how I was treated and spoken to by my employer once I started providing care for my mom who had become unexpectedly and seriously ill from cancer. I didn’t know how long I’d be caregiving; my mom was only expected to live for a month or two based on the severity of her illness. As time went on, though, the more I became certain my job was in peril if I didn’t go back full time, which added incredible stress to an indescribably stressful time. I had taken intermittent Family Medical Leave, which meant I was still responsible for my work tasks. While waiting for my mom to receive chemotherapy or radiation treatments I would scramble to make phone calls and respond to emails in the lobby or parking lot. At the end of a 16-hour day of caregiving — bone tired and beside myself — I’d crack open my laptop to catch up on assignments.
As my workload diminished and comments from my supervisors made it clear that my job would expire when my medical leave did, I sunk into depression about losing my livelihood and my mom in one swoop. I asked for an accommodation — perhaps to only have writing and research work rather than client contact and responsibility for a large case list — it was denied. And as expected, when my leave hours ran out, I was fired.
The pandemic shined a light on working caregivers’ delicate balancing act. While it is becoming increasingly accepted by employers that workers have personal lives, and more organizations are offering caregiving benefits and assistance, many are preparing to protect themselves from family discrimination lawsuits during the shifting remote work landscape. This has not yet been embraced by smaller employers, who may not have strong benefits or human resource staff with their finger on the pulse of this issue. And in a society where one in three workers is now a gig worker (without a traditional employer), the need for universal worker protections is becoming more evident every day.
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What is caregiver discrimination?
Understanding what constitutes caregiver discrimination in the workplace is the first step. Discrimination means that an employer treats a caregiving employee differently than a non-caregiving employee. Showing a preference for non-caregiving employees or making it more difficult for caregiving employees to do their jobs may be discriminatory. Making assumptions about your caregiving duties (like expecting that if you have a spouse, they should be handling the at-home caregiving or that you won’t work hard because of your caregiving or age) may also be discriminatory.
Caregiver discrimination lawsuits more than tripled between the early to mid 2000s. This discrimination affects all genders, backgrounds, and ages, but impacts women, older workers, and minorities more than others. Women caregivers drop out of the workplace three times more than males and 2 out of 3 workers over 50 adjust or leave their jobs to provide care. Make no bones about it: most older caregivers do not retire early by choice. In fact, 75 percent of workers who retired early from work because of family caregiving report that they would have stayed on the job if they had access to better support. Minority workers are also penalized more for attending to their caregiving roles. Although companies are rolling out diversity and inclusion initiatives, this has not yet caught up to the negative work impacts minority caregivers face compared to their work counterparts.
Even if these issues don’t affect you directly, caregiver discrimination affects society as a whole and we can all take responsibility to minimize and prevent it.
Learn about legal protections and workplace policies. Which legal protections apply to you depend on whether you work for a private or government organization and the laws in your area. There are no explicit federal laws protecting caregivers, although certain caregivers are covered by FMLA and the ADA. Only a few states specifically include family caregivers as a protected class in their laws, but almost two dozen localities have passed family responsibility discrimination protections. It’s a work in progress and more states should follow suit. Second, the organization may have procedures that give employees flexibility and accommodation during caregiving stints. Paid family leave is not guaranteed, but around 50 percent of workers do have some access to paid leave and other supportive policies and benefits through their employers.
Discuss and support. Two-thirds of employees surveyed expressed concerns about their manager attitudes and skills relating to their ability to be flexible with a caregiving employee. Talk to your human resources professionals and supervisors about the importance of becoming a caring company. There is sufficient long-term data that show how it benefits companies to help its caregiver employees and that the U.S. economy will benefit by trillions of dollars sheerly by keeping caregivers in their jobs rather than terminating or forcing early retirement. Share this information and ask about your company’s plans for the future.
Take an interest in your co-workers' well-being and success. If you see a colleague struggling, reach out and ask how you can help. If it is possible to take a team approach to tasks or assignments, offer to do so. If you feel that other workers are picking up the slack for a caregiving co-worker, collaboratively approach a way to address it. Sometimes, we have to “manage up” and show our supervisors workarounds for problems. Creation of a respectful workplace culture is in the hands of all who are a part of it. A proactive and empathetic approach will make your workplace better and benefit you personally should caregiving ever become a part of your life.
Document experiences. Whether you observe incidents of discrimination happening to another or experience them yourself, keep good notes of what’s happened. Address your concerns with your supervisors and human resources and document your efforts. Follow up with an email reflecting your understanding of the conversations you had. If you feel that you will be retaliated against for raising the issue, remember that if an employee has been the victim of retaliation for discussing incidents of discrimination, then that alone may be the basis of a claim against the employer.
Consult and report. If you feel that the employer has not addressed the issue or you have been terminated or otherwise harmed, you may file a complaint against your employer. Depending on your circumstances and location, the complaint could be with a federal or state agency or both. A state or local anti-discrimination agency or a licensed attorney in your state can help guide you in the process. There will be deadlines for filing complaints and certain steps you need to take before filing a lawsuit, so don’t delay if this is an avenue you must pursue.
Looking ahead to the explosive numbers of Americans who will need care by the year 2030, the vast majority of employed people will also be caregiving at home. These gaps in support for our nation’s caregivers at work highlight where the country’s laws and our cultural attitudes and participation to help ourselves and others will all grow together to create necessary change.
It can be difficult to tell discriminatory conduct from non-discriminatory conduct. Do your research and ask for help to determine whether the treatment is unkind, unfair, unlawful, or all of the above. Here are some statements that could be deemed discriminatory:
- Don't come back from caregiving leave and then get pregnant; if you do, you'll never make partner
- We gave the assignment to John because you're taking a lot of days off lately to help your dad
- We're moving this client to Beth so you can retire
- We'll revisit the idea of a promotion or raise after you're done caregiving
- Can't your wife take care of your mom?