Employee Caregivers Are Filing More Lawsuits

Family responsibilities discrimination actions have high success rates

By Stephen Miller, CEBS May 24, 2016
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More workers are suing their employers, claiming they have faced discrimination because they are caring for family members.

The number of actions brought by employees with family responsibilities that were decided by courts, agencies and arbitrators in the last decade more than tripled from the prior decade—and employees won 67 percent of the cases that went to trial—according to a new study by the Center for WorkLife Law at the University of California’s Hastings College of the Law.

The study report, Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016, analyzed 4,400 family responsibility discrimination cases filed in the U.S. over a 10-year period and found a 269 percent increase in the number of such cases filed in the past decade over the previous decade. The data also show that men are filing such lawsuits at a growing rate.

The findings reveal “a classic bad news/good news scenario,” said report author Cynthia Thomas Calvert, senior advisor to the Center for WorkLife Law. “The bad news is that discrimination against employees with family responsibilities is on the rise. The good news is that we are starting to pinpoint when and why it occurs, which means that we can address its root causes.”

Family responsibilities discrimination litigation cost U.S. employers $477 million over the past decade—compared to approximately $197 million from 1996 to 2005, according to the report. These figures exclude the ripple effects of discrimination, including employee attrition and related replacement costs, damage to the company’s public reputation, and reductions in the morale and productivity of all employees, the report states.

Types of Cases

Most of the family responsibilities discrimination cases in the study arose in connection with:

  • Pregnancy and maternity leave (67 percent).
  • Elder care (11 percent).
  • Care of a sick child (9 percent).
  • Care of a sick spouse (6 percent).
  • Care of a family member with a disability (5 percent).
  • Motherhood (5 percent).

“This report shows us that employers need to be particularly vigilant when it comes to following laws related to pregnancy and lactation accommodation, as these life events account for the highest number of discrimination cases brought by workers,” said Joan C. Williams, founding director of the Center for WorkLife Law. The center has developed a website to help employers, employees and their attorneys navigate the legal landscape around pregnancy in the workplace.

One quickly growing area of family responsibilities cases involves employees who care for sick or aging parents. The researchers anticipate that eldercare cases will become even more prevalent as the U.S. population ages. “Until employers adjust to the realities of families with all adults in the paid workforce and a significant growth in the number of older Americans who need assistance from their adult working children, it’s unlikely we’ll see a decrease in the number of cases filed,” said Calvert.

Protective Steps

Employers can take specific steps to reduce their vulnerability to litigation from employees, the researchers advised. Such steps include:

  • Training supervisors about what constitutes family responsibilities discrimination and how to avoid it.
  • Adopting explicit written policies against such discrimination.
  • Instituting effective complaint procedures for workers who feel they are facing discrimination.
  • Creating work coverage plans to maintain productivity during employee leaves and reduce the stigma associated with absences taken for family care reasons.

Stephen Miller, CEBS, is an online editor/manager for SHRM. Follow me on Twitter.

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