Caregiver Discrimination

Michigan ACE – Women’s Network

Kristine MooreAssistant General Counsel, MSUJune 2015

Background

BUREAU OF LABOR STATISTICS, DEP’T OF LABOR, WOMEN IN THE LABOR FORCE: A DATABOOK 1 (2006).

Mothers of young children are twice as likely to be employed today as their counterparts 30 years ago

Percentage of mothers with children under 3 in labor force: 1975: 34% 2005: 59%BUREAU OF LABOR STATISTICS, DEP’T OF LABOR, WOMEN IN THE LABOR FORCE: A DATABOOK 1 (2006), Table 7.

More Women Than Men are Caregivers

• 66% of caregivers are female

National Alliance for Caregiving and AARP (2009), Caregiving in the U.S. National Alliance for Caregiving.

Total time couples with children spend working in U.S. has increased

Weekly work hours of married couples with children under 18:1969: 55 hours2000: 66 hours

BUREAU OF LABOR STATISTICS, DEP’T OF LABOR, WOMEN IN THE LABOR FORCE: A DATABOOK 1 (2006), Table 7.

Care for Elders

Women provide about 70% of unpaid elder care

Peggie R. Smith, Elder Care, Gender, and Work: The Work-Family Issue of the 21st Century, 25 Berkley J. Emp & Lab. L. 351, 360 (2004).

Care for individuals with disabilities

Nearly a third of families have at least one family member with a disability

U.S. Census Bureau, Disability and American Families: 2000, at 2, 16 (2005).

Women of Color: Impacted More Significantly• Female heads of household:

• African American households: 22%• Hispanic households: 14%• White households: 5%

• Eldercare responsibilities:• African American and Hispanic women: 33%• White women: 20%

• Women of color devote more time to caring for extended family, including grandchildren and elderly relatives.

Lynette Clemetson, Work vs. Family, Complicated by Race, N.Y. Times, Feb. 9, 2006, at G1; Population Reference Bureau: Diversity, Poverty Characterize Female Headed Households; U.S. Census Bureau, Grandparents Living with Grandchildren: 2000, Table 1 (2003).

Socioeconomic

• The caregiving time burden falls most heavily on lower-income women:

52% of women caregivers with incomes at or below the national median of $35,000 spend 20+ hours each week providing care.

Marks, N. Lambert, J. D., & Choi, H. (2002). Transitions to caregiving, gender, and psychological well-being: A prospective U.S. national study. Journal of Marriage and Family, 64, 657–667.

Male Caregivers?

• Caregiving is statistically still predominantly female

• However, men have increased caregiving (tripled since 1965)

Donna St. George, Fathers Are No Longer Glued to Their Recliners, Was. Post, Mar. 20, 2007, at A11.

CAREGIVER DISCRIMINATION

Employment Actions

• Recruitment • Hiring • Promotion • Transfer • Wages and benefits • Work assignments • Leave • Training and apprenticeship programs • Discipline • Layoff and termination

Example: Discrimination Analysis

• Sue Kim alleges she is being discriminatorily paid less than her male counterparts.

• The employer cites Kim’s performance as the reason for her lower pay. The investigator then compares the compensation of Kim and similarly situated employees, according to the factors the employer says go into salary (experience (“Exp.”) and performance rating (“Perf.”)):

Protected Class

Salary Salary Factors

Not in Protected Class

Salary Salary Factors

Kim (CP) $28,000 Exp. = 3 yrs Perf. = 3 Smith $31,000

Exp. = 3 yrs Perf. = 4

Thomas $34,000 Exp. = 5 yrs Perf. = 4

Adams $37,000 Exp. = 5 yrs Perf. = 5

• The employer’s explanation for Kim’s salary is credible

because it accounts for the pay disparity. While Kim has the same amount of experience as Smith, Kim’s performance rating is one point lower.

• As long as there is no evidence that the performance rating itself was discriminatory.

• The $3000 difference between the pay of Kim and Smith is in line with the $3000 differences between the pay of Smith and the other male employees. The evidence does not indicate discrimination.

Example: Discrimination Analysis

Laws at Play

• Family Medical Leave Act• Title VII of the Civil Rights Act• Americans with Disabilities Act• Pregnancy Discrimination Act• State laws

Legal Issues

• Pregnancy discrimination• Gender discrimination • Gender role stereotyping • FMLA violations• Race and national origin discrimination • Harassment: gender, race, national origin,

pregnancy

*Significant Legal Development: EEOC Guidance

Pregnancy: Negative Stereotypes• One study: managers associated the following terms with

pregnant employees:• Overly emotional• Irrational• Moody• Preoccupied• Undependable• Physically limited

• Another study: pregnant women are subjected to lower performance ratings than others with identical behavior and performance

Joan C. Williams, Beyond the Maternal Wall: Relief for Family Caregivers Who are Discrimination Against on the Job, 26 Harv. Women’s L.J. 77 (2003).

Pregnancy Discrimination

• Kocak v. Community Health Partners of Ohio, 2005 (federal appellate court governing Michigan)

• Walsh v. National Computer Systems, 2003

Pregnancy accommodations

• Supreme Court case: Young v. UPS, 575 U.S. __ (2015)• Peggy Young was a UPS driver who asked the company to

give her a less demanding shift when her doctor told her not to lift heavy items while pregnant.

• UPS said it offered light duty work to workers injured on the job, covered by ADA or lost their DOT certification, but not pregnant workers.

• UPS didn’t let her work with her restriction • Required to go on extended, unpaid leave, during which

she lost her medical coverage• Lower courts said decision was gender-neutral and

pregnancy-blind

FMLA

• Wojan v. Alcon, 2008 (Michigan federal court)

Gender Discrimination

• Part-time employees: Fair Pay?• Lovell v. BBNT Solutions, 2004

Stereotyping of Women as Caregivers

• Back v. Hastings on Hudson Union Free School District, 2004

Maternity Leave

• Childers v. Penn, filed April 2014• Docket #2:2014cv02439

Male Caregivers

Case study:•Fred returns from a 6 week paternity leave.•He is shunned by those dolling out the assignments in his IT group.•Though no one says it out loud, there is a sense that it was “unprofessional” to take paternity leave for more than a day or two and although they could not stop him, they were annoyed at having to pick up his slack and were not inclined to give him a warm welcome on the way back in.

Race discrimination

Case Study:•Margaret, an African American woman in a department, alleged race discrimination after she was denied comp time to use to fill in when she does not have enough PTO and her sitter cancels.•The Employer says she cannot use it because any absences must be taken under the official attendance policy.•What information would you want to determine whether discrimination?

Disability Discrimination

Association Discrimination – Case Study:• Joe’s wife, Mary, has Multiple Sclerosis•Joe’s supervisor is aware of this – Joe has to take time off to care for her and seems distracted at work occasionally•Joe’s supervisor does not put Joe’s name in the group of those being recommended for leadership training because he thinks Joe won’t have the time to devote to the extra work.

Best Practices• Cultural shift• Work-life balance policies

• Known to increase productivity and profits and decrease absenteeism• Ensure chairs and supervisors know them• Look at implementation – not just policy language• Contribute where you can to the discussion

• Educate about legal rights and responsibilities• Ensure job openings and promotions are communicated to

all eligible employees• Ensure employment decisions are objective, well-

documented and transparent • Provide equal access to workplace networks