Caregivers As A ProteCted Class? - WorkLife Law

Caregivers as aProtected Class?:The Growth of State andLocal Laws Prohibiting FamilyResponsibilities Discrimination

Caregivers as aProtected Class?:The Growth of State andLocal Laws Prohibiting FamilyResponsibilities DiscriminationStephanie Bornstein & Robert J. Rathmell*The Center for WorkLife LawUniversity of California,Hastings College of the LawDecember 2009 2009 Center for WorkLife Law

Caregivers as a Protected Class?The Center for WorkLife LawExecutive SummaryThis report details the results of a Center forWorkLife Law survey, the first comprehensive reportto identify and analyze 63 local laws in 22 statesthat go beyond state and federal law to expresslyprohibit discrimination at work against those whoare also caregivers at home. The local laws detailedcreate a new protected class of those with familyresponsibilities, by specifically including parental orfamilial status or family responsibilities along withother protected classes (such as sex, race, religion,and disability) in city or county codes that prohibitemployment discrimination. In these localities,many of which are major urban areas, caregivers areprotected at work beyond current remedies availableto them under state and federal law.The resulting patchwork of state and local lawsdetailed in this report is of keen importanceto employers as they work to craft policies andpractices to avoid the rising numbers of familyresponsibilities discrimination claims. It isimportant, too, for employment lawyers, boththose who advise employers about their potentialsources of liability, and those who representworkers who believe they have experienceddiscrimination at work. It should also be ofinterest to advocates and state policymakersseeking policy solutions beyond short-term leavesto help working families meet both work andfamily obligations successfully.While the scope of local laws may seem limited,their impact can be significant—and costly. Asingle mother of two who filed a complaint forparental status discrimination under Chicago’slocal ordinance was recently awarded over 300,000 in compensatory and punitive damagesand attorneys fees when she was fired from her jobas a medical services salesperson after reschedulinga meeting because her daughter was ill. Thecompany had a lax approach to attendance, butonly for people without children: other employeeswere given more vacation time or regularly excusedfor non-family personal emergencies, like aplumbing problem at home.1As this case illustrates—and as this reportdetails—many localities provide employees whoexperience family responsibilities discriminationwith additional legal remedies, beyond state andfederal law. An awareness of these local laws isessential for employers and employment attorneys,and important to fully understand the developinglaw of family responsibilities discrimination.OverviewOver the past five years, the issue of employmentdiscrimination based on family caregivingresponsibilities has grabbed the attention of legaland human resource professionals nationwide.Family responsibilities discrimination, or FRD,is discrimination against employees basedon their responsibilities to care for familymembers—including pregnancy discrimination,discrimination against mothers and againstfathers who actively participate in caring for theirchildren, and discrimination against workerswho care for aging parents or ill or disabledspouses or family members. FRD can occurwhen a new mother is denied a promotionbased on the assumption that she will no longerbe as committed to work, rather than her jobperformance; or when a father’s employer refusesto allow him to take paternity leave to which he islegally entitled because “his wife should do it”; orwhen an employee is fired for not meeting workgoals while he is on a legally protected family andmedical leave to care for an ailing parent.2Also known as caregiver discrimination, FRD hasbecome a hot topic not only among attorneysand human resources professionals, but also withworkers, unions, employers, courts, policymakers,and the press.3 In 2006, the Center for WorkLife

Caregivers as a Protected Class?Law (WLL) released the first study of FRD lawsuits,analyzing more than 600 such suits filed between1971 and 2005. The 2006 study documenteda 400% increase in the number of FRD casesfiled between 1996 and 2005 as compared to thenumber filed in the decade prior, between 1986and 1995.4 To date, WLL has now collected dataon more than 2000 FRD lawsuits; preliminaryanalysis of this much larger group of cases showsthe number of FRD lawsuits filed continuing toincrease each year between 2006 and 2008.5Recognizing the growing scope of the problem, in2007, the U.S. Equal Employment OpportunityCommission (EEOC) issued EnforcementGuidance on the topic of caregiver discrimination,explaining in detail how existing federal laws thatprohibit sex and disability discrimination protectfamily caregivers at work. The Guidance raisedthe profile of the problem of FRD considerably,in particular catching the attention of employersand the attorneys who represent them. In April2009, the EEOC followed up with a secondpublication on the topic, which supplements the2007 Guidance by providing examples of bestpractices for employers to decrease the likelihoodof EEO complaints and remove barriers toequal employment for workers with caregivingresponsibilities.6The number of lawsuits alleging FRD is vast andever-growing; yet while FRD is actionable undermany theories in existing federal and state law,7with a very few exceptions, FRD is not expresslyprohibited in most state and in federal statutes.This means that, barring the few exceptions, thereare no laws that protect caregivers or people withfamily responsibilities as a specific group or classfrom discrimination. Instead, plaintiffs who havesued their employers for FRD have successfully fittheir FRD-related claims into other legal theoriesin existing state and federal law—for exampleas sex discrimination, discrimination based onassociation with a person with a disability, or aviolation of state or federal family and medicalleave laws.The Center for WorkLife LawThis report identifies that, while no federal lawand only a few state laws expressly prohibit FRD,at least 63 local laws do—by specifically includingparental or familial status or family responsibilitiesas a protected classification, like sex, race,religion, and so on, in city or county codes thatprohibit employment discrimination. The reportpresents the findings of a survey by the Center forWorkLife Law of nearly 3,700 local governmentlaws (city and county ordinances and codes)that found 63 local governments that explicitlyprohibit employment discrimination based on anemployee’s family status or responsibilities. Thereport analyzes these findings and the implicationsthey have for workers, employers, attorneys,advocates, and policymakers nationwide.Key Findings of the StudyThe Center for WorkLife Law’s analysis of localFRD laws reveals the following key findings: At least 63 local governmentsin 22 states—including severalmajor urban areas with large laborforces—have passed local FRD lawsthat go beyond federal and state lawand expressly prohibit employmentpractices that target people withfamily responsibilities. The sizes and types of employers(whether public or private) coveredby local FRD laws vary, but mostapply to private employers, withsome covering businesses as small asthose with only one employee. While most of the local FRDlaws prohibit employmentdiscrimination on the basis ofbeing a parent or guardian of aminor child, several go further toinclude other family caregivingrelationships—for example,contributing to the care of any

Caregivers as a Protected Class?dependent. Terms and definitions ofthe protected class used in the locallaws vary, but include “parentalstatus,” “familial status,” and“family responsibilities.” Many localities enforce FRD lawsby granting employees a privateright of action in the courts (someafter exhausting administrativeprocedures), which means that,as with state and federal law,employees can bring a lawsuit incivil court for a violation of a localFRD law. Other localities limitaggrieved employees to seekingrelief for FRD in an administrativeforum. Because enforcement mechanismsvary, the remedies for a successfulemployee complaint for FRDalso vary considerably by locality,ranging from small fines orinjunctive relief to major awards ofdamages and attorneys fees.Key Lessons for VariousStakeholdersThis report provides lessons for employers,employees, their attorneys, advocates, and publicpolicymakers alike: For employers and their attorneys,this report helps employers preventpotential claims and assists theirattorneys as they provide counselon complying more effectivelywith existing law. Because manyemployers operate in multiplecities, states, or even nationwide,they may not be aware of localThe Center for WorkLife Lawemployment discrimination lawsthat expand worker protections onthe local level. Adherence to theselaws is essential to employers’ effortsto prevent discrimination in theworkplace—efforts that can avoidcostly lawsuits and legal penalties. For employees and theirattorneys, this report providesinformation about additionalworker protections under locallaws about which they may not beaware. Employees and plaintiffs’attorneys in the relevant localitiesshould understand the additionalemployment protections—andadministrative and legal remedies—that local law may provide toworkers. For advocates and publicpolicymakers, this report offersa summary of existing state laws,along with new research on locallaws that may be in effect in theirstates. Nearly half (22) of U.S.states have at least one local FRDlaw, and more than half of thosestates (12) have more than one. Thereport also provides analysis of avariety of policy models for FRDlegislation offered by local laws.For all involved, the message is clear: FRD isnot only litigable using a variety of legal theoriesunder federal and state employment laws; it is alsoexplicitly prohibited as a protected classificationin the employment discrimination provisions of atleast 63 localities in 22 states nationwide.