Q: What laws protect employees who serve as
VII, the Americans with Disabilities Act (ADA), and the Family and Medical
Leave Act (FMLA) each may protect certain employees who must take time from
work to care for family members. It is
important to note that caregiver status by itself is not a protected class, but
discriminatory treatment of employees who serve as caregivers because of
membership in a protected class or stereotypes is unlawful.
Q: What does the ADA say about caregiver issues?
A: The ADA prohibits “excluding or otherwise
denying equal jobs or benefits to a qualified individual because of the known
disability of an individual with whom the qualified individual is known to have
a relationship or association.”
Q: What kinds of ADA claims might employees
generally classify these ADA-related “association” claims into three different
categories: expense; disability by
association; and distraction.
1) A scenario in the “expense” category might involve an employee who is
fired (or otherwise penalized) because a relative, who is covered by the
employee’s health plan, has a costly disability.
2) In a “disability by
association” scenario, the employer might fear the employee will contract his
or her relative’s contagious disease or have the same genetic condition.
3) The “distraction” category has
to do with the employee’s inattentiveness at work due to a family member’s
disability that requires enough attention that the employee would need an
accommodation (such as shorter work hours) to perform satisfactorily in the
Q: Does the ADA require an employer to
reasonably accommodate an employee’s wish to attend to caregiving obligations?
Q: What does the FMLA say about caregiver
employers with 50 or more employees within 75 miles, the
FMLA provides 12 weeks of unpaid leave to accommodate the birth of an
employee’s child and to care for an immediate family member with a
serious health condition.
Q: What does the law say about how my employer
should address caregiver needs in the workplace?
A: The Equal
Employment Opportunity Commission (EEOC) cautions against the unlawful
disparate treatment of workers who have caregiving responsibility in a
publication it distributes to employers. It warns specifically against:
1) sex-based disparate treatment of women caregivers (such as failing to
hire or promote women with children because they are presumed to be less
committed to the job);
2) pregnancy discrimination (such as assuming pregnant women cannot
perform certain physical tasks); 3) discrimination against male caregivers
(such as denying caregiving leave that would be given to a woman);
4) discrimination against women of color (such as allowing caregiving
leave for a white woman, but not for an African American or Latina woman);
5) unlawful stereotyping under the ADA (such as refusing to hire someone
under the assumption that the applicant will need leave to care for a child
with a disability); and
6) creation of a hostile work environment (such as offensive comments
made by the employer or other employees about an employee’s caregiving
Q: What are some guidelines the EEOC has
recommended to avoid liability under Title VII or the ADA for discrimination
related to caregiving?
A: The EEOC
recommends that employers:
1) be aware of, and train managers about, the legal obligations that may
impact decisions about treatment of workers with caregiving responsibilities;
develop, disseminate and enforce a strong non-discrimination and
ensure that managers at all levels are aware of, and comply with, the
organization’s work-life policies; 4)
respond to complaints of caregiver discrimination efficiently and
protect against retaliation.
This “Law You Can Use” column was
provided by the Ohio State Bar Association. It was prepared by Columbus
attorney Amy Ruth Ita of Barnes & Thornburg LLP. Articles appearing in this
column are intended to provide broad, general information about the law. Before
applying this information to a specific legal problem, readers are urged to
seek advice from an attorney.
Labels: ADA, Americans with Disabilities Act, caregivers, employees, Family and Medical Leave Act, FMLA