Taking better care of caregivers
Mothers, not only do you have your own day this Sunday, you also are the primary beneficiaries of a growing body of laws and court rulings that grant workplace protections to caregivers.
California is among several states and cities that are passing or considering legislation banning job discrimination against workers with the responsibility of caring for children, aging parents or ill spouses. Caregiving discrimination lawsuits have exploded -- with plaintiffs often winning -- which has left some employers worried that it would be harder for them to fire workers who use their caregiving duties as an excuse for poor performance.
These laws and other actions are based on an emerging legal doctrine built around the concept of “family responsibilities discrimination.” The doctrine is based on evidence that pregnant women and caregivers often are passed over for jobs, dinged on performance reviews or blocked from promotions. Some employers assume they would be absent more frequently and won’t work as hard or be as committed to their careers as those without caregiving duties.
“We’ve all heard about the glass ceiling,” said Joan Williams, who teaches property law at UC Hastings College of the Law in San Francisco. “But most women never get near it because they’re stopped by the maternal wall.”
Nora Lopez contends that her pregnancy led to her being fired as a Walgreen Co. store manager. Lopez said she had worked for the drugstore chain for 12 years and was promoted to store manager with a string of positive evaluations when she became pregnant in 2005.
On days when she suffered from morning sickness, Lopez said she got her district manager’s permission to come in half an hour late and let another employee open her Vallejo, Calif., store, as other store managers had done on occasion.
But when a new district manager took over, he told her that she had violated store policy by not opening the store herself, Lopez said. He and other company officials pressured Lopez to resign, she said, but when she refused, Walgreen fired her in November 2005. Lopez, who already had two children, lost her medical benefits months before her son, Angel, was born.
She is suing the retail chain for back pay and damages. Walgreen spokesman Michael Polzin said only that “policy violations” by Lopez led to her dismissal.
Lopez, 41, tears up when she talks about the experience. “I felt like I had no voice, I felt I had no rights,” she said. “I get sick when I’m pregnant. I can’t help it.”
Caregiving discrimination lawsuits such as Lopez’s have surged, rising 400% from 1996 to 2006. All other employment-related discrimination claims are up only 23%, according to Hastings’ Center for WorkLife Law, which Williams directs.
The plaintiffs -- men as well as women -- have prevailed in more than half of these cases, Williams said. That’s often because managers with “loose lips” made such statements to female employees as “Women should be at home raising babies” or “Oh my God, she’s pregnant again!” she said.
Generational attitudes partly explain the litigation boom. Baby boomer women felt so lucky to get good jobs that they often didn’t complain if they were treated less favorably than men, Williams said. But younger women “feel entitled to be in the workforce” and are less tolerant of discrimination. “When pushed, they sue,” she added.
The family responsibilities doctrine includes existing statutes, such as those barring pregnancy discrimination. But backers argue that it also shields other caregivers who can’t find themselves in the text of current statutes.
For example, federal law requires employers to accommodate the needs of disabled workers and grant employees leave to care for sick or disabled relatives. But no federal statute expressly forbids job discrimination on the basis of an individual’s parenting status.
California law expressly bars job discrimination on the basis of sex and marital status, among other factors, but not caregiving.
A bill now before the state Senate amends the Fair Employment and Housing Act, extending that protection to parents and workers with an ill or disabled spouse or aging relatives. SB 836, sponsored by state Sen. Sheila Kuehl (D-Santa Monica), would apply to businesses with five or more employees. It is scheduled for a vote in the Senate Appropriations Committee on Monday.
Alaska and nine cities and counties, including Atlanta, Chicago and Washington, have passed similar legislation. Lawmakers in Pennsylvania and New York are considering such measures.
Courts are often deciding in favor of caregivers.
In a 2004 ruling, for example, a New York federal appeals court sided with school psychologist Elana Back, who was denied tenure after her child was born despite earlier positive performance reviews and assurances that she would receive tenure. Back’s supervisors questioned whether her commitment to work would suffer now that she “had little ones at home,” according to court records.
Maryland state trooper Howard Knussman asked for leave under state law to care for his newborn daughter and wife, who was confined to bed because of a difficult pregnancy. His supervisor denied Knussman’s request, saying that “God made women to have babies and, unless [Knussman] could have a baby, there is no way [he] could be primary care [giver]” and thus was ineligible for leave under state law, according to Knussman’s lawsuit. In a 2001 ruling, a federal appeals court upheld the trooper’s claim for damages.
A panel on work-life balance convened last month by the federal Equal Employment Opportunity Commission underscored concerns about caregiving bias. With more women in the workforce, “what once were individual issues really have become societal issues, and as a society we really need to find a way to make it work,” commission Vice Chairwoman Leslie Silverman said.
Pregnant workers’ complaints filed with the EEOC and state and local agencies soared 45% between 1992 and 2006, to a record 4,901 last year. The agency has found merit in a higher percentage of these complaints over the years than in allegations involving race, religion or other categories, EEOC spokesman David Grinberg said.
Some employer groups are concerned that the pro-caregiver movement could be going too far. The California Chamber of Commerce worries that it “would impair, legally or in practice, the ability of employers to enforce workplace attendance and performance rules,” according to spokesman Vince Sollitto.
One concern comes when a “marginal employee” gets pregnant, said Scott Tiedemann, a Los Angeles lawyer who represents employers. “Suddenly they’re cloaked with protections under California law” that they didn’t have before the pregnancy.
But some employers say they’ve avoided litigation and reaped benefits by becoming more sensitive to staffers’ caregiving needs.
Jim Johnson invited the 60 administrative staffers at his Denver moving and storage business to work more flexible hours or from home. A third of them accepted.
“This group has had far less turnover than the rest of our group,” he said. “This is a benefit I can offer that’s not a direct cost to me, and it’s highly regarded.”
