One day, with no warning and no prior history of discipline, Theatrice Ann Coats was fired from her job, allegedly for eating food at her desk. But the real reason may have been something that happened weeks earlier. When her mother’s daycare closed due to the pandemic, Theatrice asked her employer if she could take FMLA leave to provide care for her mother, who has Alzheimer’s disease. Theatrice’s employer denied her request and she kept working until the abrupt firing.
There is a name for what Theatrice says happened to her: family responsibilities discrimination. FRD is discrimination because an employee provides care for a family member. It can take many forms, including unjust firing, refusal to hire, unequal treatment, and harassment. Caregivers of adults can be affected, as well as parents of children.
Many other employees are wondering if they, too, are facing unjust treatment based on their family responsibilities. Calls to the WorkLife Law employee hotline have increased roughly 700% since the pandemic started, and the number of lawsuits filed by employees claiming they’ve been discriminated against due to caregiving has also increased significantly. In addition to being targeted for layoffs and denied leave, caregivers say they are receiving unfairly negative evaluations, punitive workloads, and schedule changes designed to force them to quit.
Is it illegal for an employer to treat an employee poorly because the employee cares for a family member? The answer is a confusing “probably.” A caregiver’s legal rights depend on the city and state where they work. A recent study, “Caring Locally for Caregivers,” released by the AARP Public Policy Institute and the Center for WorkLife Law at UC Hastings Law, uncovered family responsibilities discrimination laws that protect family caregivers in Delaware and 32 local jurisdictions of all sizes, from New York City and San Francisco to Champaign, Illinois and Adrian, Michigan. And 52 more local jurisdictions have FRD laws that might cover caregiving for adult family members; the laws are silent about what types of caregiving are protected. (Three more states and 107 local jurisdictions have FRD laws, but they cover only parents of minor children and pregnant employees.)
Employees who do not work in a jurisdiction with an FRD law may still be protected by federal laws such as Title VII (sex discrimination), the Family and Medical Leave Act, and the disability association provision of the Americans with Disabilities Act. But these federal laws don’t protect all caregivers – for example, they often don’t cover small employers and may apply only in situations involving serious health conditions or disabilities – and they can be hard to use.
Linda (not her real name) is one of the many caregiving employees left behind by the patchy federal laws. Linda’s manager had agreed not to put her on the schedule for one long weekend a month so she could travel to care for her aging mother, but everything changed when the pandemic hit and a new manager was brought in. The manager told Linda that she could no longer block off caregiving time even though other employees were permitted to block off the days that they were not available to work. Linda’s requests to be treated the same as other employees were unavailing and she was forced to choose between working and caring for her mother. She chose her mother.
“I felt upset and cheated. I worked hard, won performance awards and I was never out sick, all because I was so grateful for the flexibility I had at first. The new manager didn’t care. I had to leave a job and coworkers that I loved – it was very hard,” Linda said.
Existing law in Colorado, where Linda worked, did nothing to protect her from being pushed out of her job. But had she been in another jurisdiction, she might still be working.
The state and local FRD laws identified in Caring Locally for Caregivers are more comprehensive and have straightforward protections for caregivers that the federal laws don’t have. First, they are broader. They are not limited to situations in which an employee has taken family leave or the person cared for has a disability. They also often apply to small employers , reaching more employees and workplaces. And they typically cover caregiving for more types of family members like in-laws and siblings, with some covering even people who are not related to the employee by blood or law if they and the employee have a family-like relationship.
Second, the FRD laws are clearer about their protection of caregiving employees, making it easier for employers and employees to understand their respective rights and obligations. These laws state specifically that they prohibit discrimination based on family status or family responsibilities and often describe the type of actions that employers cannot take. If an employee believes that discrimination has happened anyway, many of the FRD laws allow employees to sue their employers in court for damages and attorney’s fees.
More FRD laws are needed to ensure protection of caregivers as the number of employees providing care – already a whopping 25 million – continues to grow. Some legislative action is already underway. A bill to prohibit FRD was introduced in the U.S. Senate in the last Congress by Senator Cory Booker (D-NJ) and is expected to be re-introduced in 2021. And while a bill is pending in the California state legislature, legislative action is needed by more states and local jurisdictions, with an urgency that matches the crisis at hand. A good first step for advocates would be to focus on jurisdictions that have laws that protect some caregivers but that fail to cover (or are unclear about whether they cover) caregivers for adults. An amendment that defines the terms used in the law may not be difficult to pass, and model language exists. Advocates may also want to seek passage of state-wide legislation to finish the job in states like Michigan, Pennsylvania, Florida, and Oregon where a large number of caregiving employees are already protected by local laws.
As the pandemic and the caregiving crisis it has prompted continue, more action is needed to protect caregivers from discrimination at work. Linda’s experience shows why. “It was extremely frustrating that I had so little protection under the law,” she said. “I had to help my mother, an elderly person in need, and HR made it clear they didn’t have to do anything to protect me from discrimination. Maybe a law would have changed that.”
Cynthia Thomas Calvert, an employment lawyer, is the principal of Workforce 21C and senior advisor at the Center for WorkLife Law for family responsibilities discrimination.
Jessica Lee is a senior staff attorney at the Center for WorkLife Law, where she works to advance gender equality in the workplace and in education, with a focus on family caregiver discrimination.