Prompted by this update from from Workforce.com today, I discovered the AARP has produced a white paper (full version at the link) from the AARP Public Policy Institute, billing itself as the “first in a series of AARP Public Policy Institute papers on issues of eldercare and the workplace.”
Titled “Protecting Family Caregivers from Employment Discrimination,” the white paper is authored by Joan C. Williams, Robin Devaux, and Patricija Petrac, from the Center for WorkLife Law, at the University of California, Hastings College of the Law and Lynn Feinberg, from the AARP Public Policy Institute.
Central to the paper is the concept of family responsibilities discrimination (“FRD”), which, again quoting the paper, “arises from the unfair treatment of workers with caregiving responsibilities, including workers caring for children, older adults, ill spouses, or other family members with disabilities.”
FRD Issues in Eldercare
While acknowledging that caregiving extends to all manner of individuals, the white paper focuses on eldercare. It quotes some interesting statistics on the general “graying” of the american workforce, but it identifies that, while no existing law specifically covers the alleged bias against caregivers, that the following existing laws provide workers protection:
The Family and Medical Leave Act of 1993: The FMLA creates rights for eligible employees to take unpaid, job-protected leave for, e.g., caring for a parent or spouse with a “serious health condition.” The law prohibits an employer from denying or discouraging such leave or from retaliating against anyone who requests or has taken FMLA leave.
The Americans with Disabilities Act of 1990: The ADA prohibits discrimination based on “association with” an individual with a “disability” as defined in the law, which has recently been expansively amended. The ADA also offers protection to workers caring for individuals with disabilities.
The Rehabilitation Act of 1973: The Rehabilitation Act was created to extend and revise the authorization of grants to States for vocational rehabilitation services, and it prohibits discrimination based on disability by the federal government, federal contractors, and recipients of federal financial assistance. The standards used to determine employment discrimination are the same as those used in Title I of the ADA.
The Employee Retirement Income Security Act of 1974: ERISA prohibits employers from firing or discriminating against any employee to prevent that employee from exercising his rights under any benefit plan.
Title VII of the Civil Rights Act of 1964: This Act prohibits discrimination on the basis of race, color, religion, sex or national origin. The white paper suggest that women caregivers, for example, may be able to allege discrimination if they have been mistreated based on gender stereotypes, like being less committed to their job than men.
The Age Discrimination in Employment Act of 1967: Prohibits discrimination against any employees 40 years of age or older. Older working caregivers may have a basis to claim that family responsibilities trigger age discrimination in the workplace.
More importantly, the white paper identifies over 67 local municipalities in the more than 20 states with local ordinances or other laws prohibiting family responsibilities discrimination. As employers, we should keep these on the radar, because it would appear that not only will these “associational discrimination” claims continue to be an issue, but further that at least the AARP will be pushing for more legislation on this issue in the future.