Thursday, May 26, 2016

Beware eldercare-discrimination claims



One of the very first posts I ever wrote on this blog, almost nine years ago to the day, discussed the EEOC’s then-new Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. One of the key issues noted by the EEOC in that document, and three years later in its follow-up document, Employer Best Practices for Workers with Caregiving Responsibilities, was eldercare discrimination:
Of course, workers’ caregiving responsibilities are not limited to childcare, and include many other forms of caregiving. An increasing proportion of caregiving goes to the elderly, and this trend will likely continue as the Baby Boomer population ages. As with childcare, women are primarily responsible for caring for society’s elderly, including care of parents, in-laws, and spouses. Unlike childcare, however, eldercare responsibilities generally increase over time as the person cared for ages, and eldercare can be much less predictable than childcare because of health crises that typically arise. As eldercare becomes more common, workers in the “sandwich generation,” those between the ages of 30 and 60, are more likely to face work responsibilities alongside both childcare and eldercare responsibilities.
Nine years hence, it appears that employers haven’t gotten the message. Fortune recently reported that more employees are suing over family care—and winning:
Between 1998 and 2012, federal employment discrimination cases declined overall. But not employee lawsuits over family-leave discrimination: They shot up 590%. In the past 10 years … the fastest-growing type—up 650%—was brought by employees who were taking care of elderly relatives. Nor is this a “women’s issue.” Well over a third (39%) of those eldercare actions were brought by men, who also filed 336% more paternity-leave lawsuits than in the decade before. 
For employers, this gets expensive. Plaintiffs have been winning cases about 70% of the time, the study says, or more than twice as often as they prevail in other kinds of employment suits. Altogether, litigation over what the study calls “FRD,” for family responsibilities discrimination, has cost employers almost half a billion dollars ($477,009,417) between 2006 and 2015, more than double what it cost in the previous decade. And that’s a conservative estimate, because it doesn’t include the cost of confidential out-of-court settlements.
This issue hits workers my age particularly hard, as we are bookended by caregiving responsibilities. We not only have our children to which to attend, but also our parents. Employers that mis-perceive employees dedication to their families as a lack of dedication to their jobs are missing the bigger picture. It is not only the right thing to grant your employees the flexibility to attend to family issues when they arise, but it is also the legal thing. $477 million dollars suggests that employers, unfortunately, have not received this message.

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