Q: What laws protect employees who serve as caregivers?
A: Title VII, the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA) each may protect certain employees who must take time from work to care for family members. It is important to note that caregiver status by itself is not a protected class, but discriminatory treatment of employees who serve as caregivers because of membership in a protected class or stereotypes is unlawful.
Q: What does the ADA say about caregiver issues?
A: The ADA prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” In other words, it could be illegal to turn down an applicant or take action against an employee because of the applicant's or employee's caregiver obligations.
Q: What kinds of ADA claims might employees have?
A: Courts generally classify these ADA-related “association” claims into three different categories: expense; disability by association; and distraction.
1) A scenario in the “expense” category might involve an employee who is fired (or otherwise penalized) because a relative, who is covered by the employee’s health plan, has a costly disability.
2) In a “disability by association” scenario, the employer might fear the employee will contract his or her relative’s contagious disease or have the same genetic condition.
3) The “distraction” category has to do with the employee’s inattentiveness at work due to a family member’s disability that requires enough attention that the employee would need an accommodation (such as shorter work hours) to perform satisfactorily in the workplace.
Q: Does the ADA require an employer to reasonably accommodate an employee’s wish to attend to caregiving obligations?
A: No. the "reasonable accommodation" obligation extends only to disabilities of actual employees.
Q: What does the FMLA say about caregiver issues?
A: For employers with 50 or more employees within 75 miles, the FMLA provides 12 weeks of unpaid leave to accommodate the birth of an employee’s child and to care for an immediate family member with a serious health condition. In other words, an employee may have the right to FMLA leave to be a caregiver for a family member.
Q: What does the law say about how my employer should address caregiver needs in the workplace?
A: The Equal Employment Opportunity Commission (EEOC) cautions against the unlawful disparate treatment of workers who have caregiving responsibility in a publication it distributes to employers. It warns specifically against:
1) sex-based disparate treatment of women caregivers (such as failing to hire or promote women with children because they are presumed to be less committed to the job);
2) pregnancy discrimination (such as assuming pregnant women cannot perform certain physical tasks); 3) discrimination against male caregivers (such as denying caregiving leave that would be given to a woman);
4) discrimination against women of color (such as allowing caregiving leave for a white woman, but not for an African American or Latina woman);
5) unlawful stereotyping under the ADA (such as refusing to hire someone under the assumption that the applicant will need leave to care for a child with a disability); and
6) creation of a hostile work environment (such as offensive comments made by the employer or other employees about an employee’s caregiving responsibilities).
Q: What are some guidelines the EEOC has recommended to avoid liability under Title VII or the ADA for discrimination related to caregiving?
A: The EEOC recommends that employers:
1) be aware of, and train managers about, the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities;
2) develop, disseminate and enforce a strong non-discrimination and anti-harassment policy;
3) ensure that managers at all levels are aware of, and comply with, the organization’s work-life policies;
4) respond to complaints of caregiver discrimination efficiently and effectively; and
5) protect against retaliation.
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was originally prepared by Columbus attorney Amy Ruth Ita and updated by attorney Bill Nolan in the Columbus office of Barnes & Thornburg LLP.