Caregiver Discrimination

One of the most rapidly developing areas of employment law concerns protections from discrimination that an employee may have when they have family responsibilities. This has been termed “caregiver discrimination,” “sex-plus discrimination,” and “family responsibility discrimination.”

Why is employment law evolving with respect to family responsibilities discrimination?

A few reasons – statistics show that litigation involving allegations of caregiving discrimination has risen more than 260% over the past decade; there are more working mothers than ever before; groups such as working mothers of color are particularly impacted; and a growing segment of the workforce is part of the “sandwich generation,” where employees are caring for children and a parent simultaneously.

What is caregiver discrimination?

A caregiver can be a pregnant employee, an employee that has childcare responsibilities or an employee that is caring for family members with disabilities, illnesses or needing eldercare.

Employee caregivers are not a protected class under either Minnesota or federal law. Therefore, claims for family responsibilities discrimination must be brought within the current protections employees have under the law. This means that to bring a sex-plus discrimination claim, employees must show the discrimination is occurring to employees of a certain gender with an additional shared characteristic.

For example, liability may exist if a female employee had evidence of discrimination based on her gender, not against all women, but specifically against women with small children. Importantly, discriminatory practices of this nature are not only illegal against women, but also applies to male caregivers that are treated discriminatorily in their employment compared to other male coworkers who do not have caregiver responsibilities. These protections flow directly from the gender discrimination laws in both Minnesota (Minnesota Human Rights Act) and federal law (Title VII of the Civil Rights Act), hence why this area of law is sometimes called “sex-plus discrimination.”

How else am I protected from caregiver discrimination?

In addition to the Minnesota Human Rights Act and Title VII, there are several statutes that may be implicated to protect employees experiencing caregiver discrimination:

  • ADA – the Americans with Disabilities Act protects employees who experience associational discrimination. An employee may, therefore, have protection from discrimination because of his or her caregiving responsibilities for a disabled spouse or child.
  • Pregnancy Discrimination Act – the PDA provides protection against discrimination to women on the basis of pregnancy, childbirth or related medical conditions.
  • FMLA – the Family & Medical Leave Act grants certain employees with rights to take protected leave to care for family members and return to their employment without retaliation.
  • Minnesota Parental Leave Act – this Minnesota law also provides for leave to an employee who has to take parental leave and protects against retaliation toward employees who invoke it.

Examples of Unlawful Caregiver Discrimination

When determining whether you have protection under the law as a caregiver, it is important for you to consult an employment lawyer who is experienced in these types of discriminatory practices. In addition to creating a hostile work environment and interfering with rights and benefits, unlawful employment actions taken by an employer may include:

  • Hiring and/or promotion: It is discriminatory for a supervisor to make employment decisions based on marital status, an employee’s number or age of children, or an employee’s childcare needs or plans to have future children. An employer may also violate the law by not making positions available to eligible caregiver employees even though they are otherwise eligible. Finally, an employee may have protection against discrimination if the employer excludes them from job opportunities based on assumptions about the employee’s childcare obligations. These assumptions could be benevolent (“she has too much on her plate so soon after her pregnancy and wouldn’t want this promotion”) or more malicious (“this promotion requires travel and a mother shouldn’t be away from her family”).
  • Discriminatory treatment and/or termination: An employer may violate the law if its behavior toward an employee changes after the employee assumed a caregiving role. It is important to consider whether women without childcare responsibilities are treated better than women with caregiving obligations, whether men with childcare obligations are treated differently than women with the same responsibilities and to engage in similar comparative analyses.
  • Retaliation: Claims of retaliation related to family responsibility must be substantiated in the same was as retaliation claims under Minnesota law or Title VII – they must be based on an adverse employment action. A plaintiff must show that a “reasonable employee would have found the challenged action materially adverse.” Therefore, it is important to look specifically at the employers’ actions. For example, was the employee switched from a flexible schedule to a standard schedule that does not accommodate childcare obligations; was the employee transferred to a different location resulting in substantially longer commutes; was the employee laterally transferred to a position that has no promotional track?

Contact Our Minnesota Employment Lawyers to Discuss Your Rights

If you are experiencing discriminatory or retaliatory treatment from your employer because you recently had a child, have caregiving responsibilities or have requested accommodation for your family responsibilities, our attorneys want to hear from you. The lawyers at Baillon Thome Jozwiak & Wanta LLP have significant experience litigating, and helping resolve, employment discrimination and retaliation cases. Contact us at 612-252-3570 or click here for a free initial consultation.