Employers Can Help Employees…and Help Themselves When it Comes to Eldercare!

by Kevin K. Johnson, Certified Senior Advisor (CSA)®

Part 2: Family Responsibilities Discrimination (FRD)

This post is a continuation of a discussion about how employers can avoid not only lost productivity costs, but also avoid employment discrimination issues that could arise from employees that are family caregivers. In our previous post we shaped the issue. Now let’s discuss the legal issues companies face.

iStock_000014696872XSmall_PMFamily Responsibilities Discrimination is discrimination against workers caring for children, older adults, or ill or disabled family members. FRD comes about from treating employees with caregiving responsibilities less favorably that other employees due to unexamined assumptions that their family obligations may mean that they are not committed to their jobs. For detailed information regarding employer history with FRD issues, consider reviewing the database of the Center for WorkLife Law. It contains over 3,000 cases involving some form of FRD. The include examples such as:

  • An employee is fired when he asks for leave to care for his chronically ill father.
  • After being told that his employer has “paid enough” for his ailing wife already, an employee is terminated when he refuses to take his wife off of the employer’s insurance plan.
  • An employee is denied leave when her employer asserts that it is not her responsibility to care for her ailing mother as long as her father is still alive.
  • An employee is called lazy and then fired after taking leave to care for his mother, who is near death.

For a frame of reference, take a look at my blog posts of July 9, 2012 and January 8, 2013, where I’ve quantified the number of employees that ask for some employer provision in order to provide eldercare for a spouse, parent, grandparent, etc…

Claims of FRD in eldercare include denial of leave and retaliation for taking leave. They usually involve employees’ needs for periodic time off to take an aging parent to medical or other appointments, to administer medications, or to perform other health care tasks in the home, such as wound care. Blocks of time off may be requested to care for an older family member who is hospitalized unexpectedly. Flexible schedules may be requested to help a grandparent who may need personal care at home (such as dressing, bathing, eating), or need advanced illness care. In addition, some employees have brought claims related to leave requests to take care of their own health problems caused by the strain of being a caregiver for a frail older parent.

FRD has caught the attention not only of attorneys and human resources professionals, but also of unions, employers, courts, policymakers, caregiver advocates, and the press.

The number of FRD lawsuits grew from about 444 cases in 1989 to about 2,207 cases in 2008, an increase of nearly 400 percent over the two decades. The dramatic rise in the number of FRD cases heightens attention to the extent of this type of discrimination, during an era in which the number of employment discrimination lawsuits heard by federal courts overall has been decreasing.

To date, only a small—but growing—number of FRD cases involve workers caring for older family members, because current public policy does not offer as much protection for workers with eldercare responsibilities as they need. An analysis of 204 eldercare cases found that only 23 cases were filed before 2000. The other 181 cases were filed between 2000 and 2009.

Lawsuits show the kinds of problems that American workers with eldercare responsibilities face.

The largest individual jury verdict in an FRD case to date ($11.65 million) involved a hospital maintenance worker, Chris Schultz, who was fired while caring for his father with Alzheimer’s disease and mother with congestive heart problems and severe diabetes. To help manage his parents’ care, he asked to take intermittent leave, to which he was entitled under the federal Family and Medical Leave Act (FMLA). While he was on leave to care for his parents, his supervisor suddenly instituted a new quota system that was impossible for Schultz to meet (and may have been designed to drive Schultz out). As a result, Schultz was fired for poor performance after 26 years as a dedicated employee with a record of excellent evaluations—the year before he began taking leave, his picture hung in the lobby as the hospital’s outstanding worker of 1999.

Not only is FMLA coverage limited, the protections it provides also are limited: Employers often treat employees with caregiving responsibilities differently for reasons that relate more to their need to alter (or keep) their schedule than to take a period of leave.

Why is Family Responsibilities Discrimination (FRD) a Policy Matter? — With very few exceptions, most federal and state statutes do not expressly prohibit FRD. No laws protect working caregivers of older adults or people with family responsibilities asiStock_SeriousSeniorExecutive_PM a specific group or class from discrimination. Rather, FRD-related claims in the workplace have been framed from other legal theories in federal and state law—for example, as sex discrimination, discrimination based on association with a person with a disability, or a violation of state or federal family and medical leave laws.

While the majority of American workers have to balance work with family responsibilities, today’s workplaces are still designed around the breadwinner-homemaker workforce of the 1950s. This outdated workplace model assumes that workers have someone at home to take care of family caregiving and domestic responsibilities. Changing workplace demographics have led to more working parents and more workers with eldercare responsibilities.

New research shows that workers who make their caregiving responsibilities known on the job, for example by requesting family leave or a flexible work schedule, often encounter bias based on assumptions that they are less competent than other workers or not committed to their jobs.

This mismatch between today’s workplace and today’s workforce is an important public policy issue. Americans rely heavily on family members to provide care for children, relatives with disabilities, and older adults—without the kinds of leaves or subsidies available in most other industrialized countries. In addition, the American health care and  Long Term Services & Support (LTSS) systems rely on family members to provide substantial, complex, and often time-consuming care for adult relatives or friends with chronic conditions or disabilities. The estimated value of their unpaid contributions was approximately $450 billion in 2009, more than total Medicaid spending ($361 billion) that year.

For many workers experiencing FRD, “opting out” of the workforce is not a viable option, and for some, losing their job may mean living in poverty. In this context, it is imperative that employers not impose job penalties and job loss on workers who have eldercare responsibilities. This imperative is all the more important in an era of high unemployment. It may no longer be an option, for someone who lost a job due to workplace bias, to simply get another job.

Next Post — Protections that exist for employees under Federal Employment Laws.

Reference: AARP Public Policy Institute

%d bloggers like this: