Companies that do not follow the laws prohibiting unlawful discrimination may be open to an EEOC or state human rights' commission claim filed against them, litigation and/or penalties. Legislation may not expressly cite the protection of parents or caregivers, but employers are reminded that discrimination based on sex as well as many other protected classes is prohibited under federal and state laws. Additionally, family leave laws may provide job protection for qualified individuals to take time off to care for family members.
What is family responsibilities discrimination?
Family responsibilities discrimination is the inequitable treatment of employees who are parents or primary caregivers for their family members. This type of discrimination may also be referred to as caregiver or parental discrimination. According to the Society of Human Resource Management, examples of practices which may violate federal statutes may include:
- Treating women with caregiving responsibilities differently than others in the workforce.
- Asking female applicants and employees about caregiving responsibilities when males are not asked those types of questions.
- Retaliating against employees who take time away from work in accordance with the Family & Medical Leave Act.
- Providing reasonable temporary accommodations for other employee medical conditions but failing to make accommodations for pregnancy.
What you need to know about family responsibilities discrimination
Despite strides made toward providing a fair and equitable workplace, discrimination against parents and caregivers remains a real concern. Awareness of the inequitable treatment experienced by those with family responsibilities has increased during the pandemic. Changes in the typical workday caused by situations such as the need for parents to adjust their typical workday to help children adjust to virtual schooling could result in the need for further discussion regarding HR policies and procedures to ensure everyone is able to do their job, regardless of their family responsibilities.
Can employers discriminate against parents and caregivers?
Discriminatory actions against parents and caregivers may be addressed within family leave legislation or civil rights laws that are designed to protect individuals on the basis of protected classes which include, but are not limited to, race, color, religion, sex (including pregnancy), national origin, age, and disability. For example, ingrained stereotypes could play into a decision by an employer not to advance a woman with young children, which would violate civil rights laws. Companies must keep up to date with their obligations under federal, state, and local laws to provide a workplace that is free from unlawful discrimination. Failing to follow the laws, or even creating a perception of not following the laws, can result in the increased risk of claims and potential lawsuits.
Family responsibilities discrimination laws
There isn't one single piece of legislation that encompasses all facets of family responsibility discrimination. Rather, employees must familiarize themselves with a number of federal laws that could be invoked when an employee brings forth a family responsibility discrimination claim.
- Title VII — Part of the Civil Rights Act of 1964, this legislation prohibits discrimination of employees based on their race, color, religion, sex, or national origin.
- Americans with Disabilities Act — Guarantees equal opportunities for disabled Americans in the workplace and everyday life.
- Family and Medical Leave Act — Provides for job security and continuation of benefits in the event an employee needs to take time off to care for an ill family member.
- Civil Service Reform Act of 1978 — Prohibits discrimination of federal employees based on marital or parental status.
Several laws and regulations that focus on family responsibility discrimination also exist at the state and local levels. Employers should review their obligations under federal, state and local laws related to workplace postings, trainings, and maintaining a respectful workplace.
Creating a plan to prevent family responsibility-related discrimination in your workforce
Companies that fail to address instances of family responsibilities discrimination could face the possibility of lawsuits and penalties due to claims brought under the laws listed above, as well as the loss of skilled labor. Changes in the work environment due to the pandemic may bring about increased scrutiny of the treatment of parents and caregivers versus employees who do not currently bear the same responsibilities. This comes after noted pre-pandemic rises in family responsibilities claims in areas such as eldercare, pregnancy and lactation accommodations, and male caregivers.
With so much at stake related to family responsibility discrimination, it's in your best interest to prioritize formulating a plan and clear-cut steps to prevent such discrimination in your organization. The following steps can help you get started.
Understand employment laws and regulation
As discussed above, there are a number of federal laws that may be the basis for claims of discrimination based on family responsibilities. In addition, states and localities have laws or regulations that may also apply to you as an employer. It's important for companies to understand the legal landscape where they do business. Obtaining experienced HR consultation or consulting with a labor and employment attorney is a smart first step. Once you understand the potential risks involved, you can translate this knowledge into formal policies and training programs.
Much of the discrimination that parents and caregivers face in the workplace is subtle. Opinions regarding a parent's personal life and family life choices should not be expressed in the workplace. Besides being none of an employees' or managers' business, expressing such opinions could support an employee's discrimination claim. For example, a manager commenting on how soon a woman comes back to work after maternity leave, requests for time off due to family commitments, or other family-related choices can expose the employer to potential claims that it violated anti-discrimination laws. This type of behavior can also correlate to team members leaving the workplace after perceiving it as hostile.
Look for evidence of bias and eliminate it
Discrimination against parents and caregivers in the workplace can take many forms. It may involve not hiring them for open positions or not promoting these individuals. This bias can also be subtle but equally insidious, such as looking unfavorably upon employees who need time off to take care of their family members or those who want to explore flexible work arrangements. When discrimination is rooted in a company's culture, you may want to seek an independent, systemic evaluation to eliminate and prevent issues in the future.
Train your managers and staff
Many of the issues that lead to discrimination against parents and caregivers in the workforce, or even potential legal action, can happen through every day, personal interactions. It's important that your company understands the different elements of risk, and incorporates that information into training programs for all staff, especially managers. Offering training on these issues can help raise awareness, prevent issues from arising, and help improve the overall quality of the workplace.
Discrimination against parents and caregivers in the workplace is a real concern. Companies that don't proactively address any issues when they arise can face exposure claims of discrimination, lawsuits and the potential to lose talented workers. Take the time to understand what this discrimination looks like and your responsibilities under applicable law. From there, create training programs and policies that support a fair and equitable workplace.