January 22, 2019

Family responsibilities and discrimination in the workplace

In today’s uncertain economy, most of us need to work for a paycheck as long as possible. And if we are lucky, our employment will also be personally satisfying and provide us with feelings of accomplishment. At some point in our lives, however, just about every working person will be asked to help out a family member who is ill, or perhaps have to ask a family member for help.

What happens when our responsibilities as employees collide with other family-related roles in our lives? How can we continue to do a good job at work while also taking good care of those we love?

This conflict is most pronounced among parents of children or teens who need help, especially if they have special needs, as well as people taking care of spouses or significant others when they are ill, and adult children helping elderly parents or grandparents. Pregnant women may also need some workplace accommodations, as allowed under federal law.

Unfortunately, employees struggling with these work-life balance challenges sometimes find themselves subject to discrimination on the job, including verbal harassment, being penalized for taking time off for medical appointments, being denied promotions or even losing their jobs. There’s even a term for this practice, according to the UC Hastings School of Law’s Center for WorkLife Law: family responsibilities discrimination (FRD), also called caregiver discrimination. Pregnant women, mothers and fathers of young children or older children with special needs, and employees with aging parents or sick spouses or partners might encounter family responsibilities discrimination. Even if the employee had previously received good performance reviews, these discriminatory actions might occur simply because their employers make personnel decisions based on stereotypical notions of how they will or should act, given their family responsibilities. 

These discriminatory practices are taking place across salary levels, from hourly workers to well-paid professionals with graduate degrees, and although most often it is female employees who are affected, male employees are increasingly reporting to be subject to FRD, as they spend more time taking care of sick or disabled family members. The incidence of men being subjected to caregiver discrimination is on the rise, as younger generations of men report they aren’t willing to put in the same long office hours away from their families that their fathers did, and want to be more engaged with their children. 

James Patterson, a Jewish Journal reader, wrote to me about how he found himself losing a prized job assignment in 1993 with the Foreign Service of the United States Department of Agriculture after his daughter, Alex, was diagnosed as a cardiac patient with transposed arteries, and then, after her successful surgery, needed ongoing medical attention. Although Patterson had passed the test to be posted abroad, “senior diplomats moved to force me out of the Foreign Service and into the Civil Service. Their reason was Alex. Fighting for her life, Alex was, they said, an insurance burden to the Foreign Service,” as Patterson wrote for The Foreign Service Journal in January of this year. 

Although there’s no blanket federal law expressly prohibiting FRD, there are many state and local laws. The landmark Americans With Disabilities Act (ADA), which was signed into law in 1990, includes a provision prohibiting discrimination against a person because of his or her association with a person with a disability, including parents.

There are other legal protections, as well, such as Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination; many FRD claims are brought under Title VII if they involve treatment of women with children that differs from treatment of men with children; if they involve stereotyping of women as mothers; or if they involve denial to male caregivers of leave or benefits available to female caregivers. The Pregnancy Discrimination Act protects women from discrimination based on their pregnancy, plans to become pregnant and childbirth. The Family and Medical Leave Act (FMLA) prohibits discrimination or retaliation against employees who have taken FMLA-protected leave, and it has been used to protect employees who take leaves in connection with the birth or adoption of a child or to take care of a seriously ill family member. 

Because there have been many family responsibility discrimination lawsuits won under this patchwork of legal protections, the human resources departments of many employers are becoming more proactive in preventing these lawsuits from being brought. Based on recommendations from the Equal Employment Opportunity Commission (EEOC), employers should be aware of, and train managers about, the legal obligations that might affect decisions about treatment of workers with caregiving responsibilities. They are also being asked to develop, disseminate and enforce anti-discrimination policies, and also look at such internal issues as attendance, medical leave and promotion to ensure they are not biased against parents and caregivers. Employers are also encouraged to create a procedure to use in responding to complaints. 

The EEOC has a list of best practices in this arena that includes encouraging employees to request flexible work arrangements that enable them to balance work and personal responsibilities; part-time work that ensures part-time workers receive proportionate wages and benefits compared with full-time workers; and providing reasonable personal or sick leave to enable employees to engage in caregiving even if not required to do so by the FMLA of 1993. 

And it’s not simply about avoiding lawsuits; corporations and nonprofits are realizing more than ever that they will do well by doing good. Providing work-life benefits for all employees helps companies maintain a competitive edge and realize a substantial payoff in improved recruitment and retention, as well as improved productivity and morale. Major companies, such as IBM and Johnson & Johnson, have, for 30 consecutive years, been on Working Mother magazine’s annual list of the best companies that support parents, in recognition of their leadership in areas such as benefits, flexibility, parental leave, advancement and child care.

Jewish organizations, schools and synagogues can and should adopt these best practices, even if those that are religious organizations are exempt from some of the laws. As we will soon be reading in our Passover haggadot, when we as a Jewish people left Egypt during the Exodus, everyone in the community came along, including the elderly and the infirm, not just the healthiest and most able-bodied. 

Michelle K. Wolf writes a monthly column for the Jewish Journal. Visit her Jews and Special Needs blog at jewishjournal.com/jews_and_