Avoiding Caregiver Discrimination Claims

by Pepper Hamilton LLP

Originally Published in The HR Specialist  -  August 2013.

Many workers, both male and female, juggle work and caregiving responsibilities. This can include providing care for young children and elderly family members, as well as providing care to disabled children, parents or spouses. While family responsibility discrimination (FRD) is not a new protected category and there is no federal law expressly preventing employment discrimination against caregivers, a number of laws can provide protection for employees with caregiving responsibilities. Employers must be aware of these protections and develop best practices to avoid discrimination claims.

For example, many workers are guaranteed leave under the Family and Medical Leave Act (FMLA) to care for a newborn or newly adopted child, or to care for a child, spouse or parent with a serious health condition. Employers must provide job protection for employees taking FMLA leave and cannot retaliate against employees for exercising their FMLA rights. Yet, the FMLA has its limitations. Private employers are covered by the FMLA only if they employ 50 or more employees, and employees are eligible for leave under the FMLA only if they have been employed for at least 12 months and have worked at least 1,250 hours in the last year.

Given the limitations of the FMLA, employees who feel that they are not being treated fairly by employers based upon their caregiving responsibilities more and more are turning to discrimination laws. The Americans with Disabilities Act (ADA) prohibits discrimination against an individual, whether or not that individual has a disability, because of his or her relationship with a disabled person. Under this “association provision” of the ADA, an employer cannot take an adverse employment action based upon “unfounded concerns about the known disability of a family member or anyone else with whom the applicant or employee has a relationship or association.”1 Similarly, Title VII of the Civil Rights Act of 1964 (Title VII) disallows discrimination based on gender stereotyping. The EEOC has issued an extensive Guidance on FRD,2 which addresses the potential for discrimination against working parents and others with caregiving responsibilities. The Guidance signifies the EEOC’s heightened sensitivity to discrimination against employees with caregiving responsibilities.

While the number of reported cases in the FRD context are few, more and more cases are being filed. Indeed, by one count, there was a 400 percent increase in FRD claims filed between 1999 and 2008, as compared with the previous decade.3 For example, in Lust v. Sealy, Inc.,4 a sales manager sued her employer, alleging failure to promote based on FRD. The plaintiff’s supervisor admitted that, although the plaintiff was qualified, he did not consider her for the promotion in question because she had children and he assumed that she did not want to relocate her family. When the plaintiff asked why she had not been promoted, the supervisor allegedly stated, “because you have kids.” A jury awarded the employee over a million dollars in damages, although this amount later was reduced by the court.

In a more recent case, Ayanna v. Dechert, LLP,5 the plaintiff, a male attorney, was terminated four months after using paid paternity leave and FMLA time to care for his children and mentally ill wife after his second child was born. In his complaint, the plaintiff alleged that “the culture for men at Dechert is a ‘macho’ one which praises and encourages male associates and partners to fulfill the stereotypical male role of ceding family responsibilities to women.” In denying summary judgment to the employer law firm – which decision would have paved the way for the case to proceed to a jury trial – the court noted that plaintiff was told that he was fired because of a “fair” rating and “personal issues,” which, the court stated, could reasonably be found to be a reference to the plaintiff’s recent need to take FMLA leave. Not surprisingly, the case settled just prior to trial for an undisclosed amount.

While employers do not need to give special preferences for those with family responsibilities, they do need to be aware of potential problems, most likely from an unenlightened supervisor. The EEOC “strongly encourages” employers to adopt best practices to make it easier for all workers, whether male or female, to balance work and personal responsibilities.6 Companies that follow these practices will be well-prepared to meet the growing FRD challenges:

  • train supervisors regarding issues such as gender stereotyping, discrimination, harassment and retaliation as they relate to employees with caregiving responsibilities
  • make sure that managers are aware not only of leave provisions under the FMLA but also of state or local leave provisions pertaining to employees providing care to children or other family members
  • make sure that all employment decisions – including those affecting caregivers – are founded on solid business reasons and not on stereotypical assumptions, and
  • institute an effective mechanism for receiving and investigating all complaints, including FRD complaints.

Policies aimed at preventing family responsibility discrimination also will enable companies to retain talented and experienced employees who happen to be caregivers.


1 http://www.eeoc.gov/facts/association_ada.html.

2 http://www.eeoc.gov/policy/docs/caregiving.html.

3 http://www1.eeoc.gov/eeoc/meetings/2-15-12/lichtman.cfm?renderforprint=1#fn26.

4 383 F.3d 580 (7th Cir. 2004).

5 2012 U.S. Dist. LEXIS 149128 (D. Mass. Oct. 17, 2012).

6 http://www.eeoc.gov/policy/docs/caregiving.html.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pepper Hamilton LLP | Attorney Advertising

Written by:

Pepper Hamilton LLP

Pepper Hamilton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.