Caregivers and Discrimination

The idea that caregiving responsibilities might give rise to discrimination is nothing new.

In 2007, the EEOC issued guidance pointing out that caregivers might face marital status discrimination, pregnancy discrimination or sex stereotyping. With the baby boomers now retiring — sometimes requiring care by their children — and as social focus continues to emphasize work-life balance, employers increasingly confront issues in providing workplace flexibility. This past year brought several notable court decisions testing the viability of caregiver discrimination claims.

Joyce v. Office of the Architect of the Capitol, decided in September by the U.S. District Court for the District of Columbia, concerned a facilities technician who challenged the government’s decision to change his shift. The plaintiff was the afternoon caregiver for his grandchildren, and the shift change would preclude him from continuing to provide that care. He argued the government deliberately changed his shift to force him to quit due to animus it held against him for prior use of protected leave and other protected complaints he had made. He resigned and sued, claiming a constructive discharge.

Ordinarily, an employer would expect that simply changing an employee’s shift would not meet the standard of intolerability required to prove a constructive discharge, but the court permitted the theory to proceed, finding that “acting as a primary caregiver can in some circumstances function as the kind of objective, unusual circumstance that makes a change in shifts rise to a constructive discharge.”

The court in DeFranco v. Ametek Ameron LLC was less willing to give deference to caregiving responsibilities. In a March 2013 decision, the Eastern District of New York considered the claim of a plaintiff who insisted he could not work more than 32 hours per week due to his need to care for his preschool-aged children. He alleged the employer insisted that 40 hours per week, plus overtime, were required, and fired him. He sued, alleging discrimination based on his caregiver status.

The employer moved to dismiss and won. The court agreed “merely alleging the reason why DeFranco could not work the necessary hours and the fact that DeFranco explained the reasoning to Ametek,” was insufficient to bring any claim based on familial status discrimination.

EEOC v. Bloomberg LP also brought an interesting opinion this year. In that case, plaintiff-employees allege Bloomberg discriminated against them on the basis of sex and/or pregnancy. While the class-wide claims were earlier dismissed, with the Southern District of New York expressly noting the law does not mandate workplace flexibility, individual claimants proceeded.

In dealing with those individual claims, the court examined workplace flexibility afforded to the claimants, illustrating it could be a source of disparate treatment.

For example, one plaintiff was a supervisor who Bloomberg demoted because, after returning from maternity leave, she refused to work past 4:45 p.m. The parties presented, and the court scrutinized, ID badge data showing the exit and entry times of the male employee who now held the position in question. A granular review of employees’ comings and goings was done to test Bloomberg’s assertion that the plaintiff truly was needed at the workplace until 5:30 p.m. to supervise her direct reports.

The court ultimately agreed the individual in question had presented enough evidence to submit her claims to a jury. This decision, while recognizing that workplace inflexibility is not illegal, illustrates how it can still be used to paint a picture of discrimination on the basis of sex.

Employers faced with the difficulty of balancing their desire to provide the flexibility employees desire with business needs should be vigilant in granting workplace flexibility on nondiscriminatory bases. Further, they should be careful not to adopt flexibility policies that do not work for their business. It is much easier to reject a proposal that is incompatible with business needs than to undo a benefit already extended.

Finally, if workplace flexibility initiatives are to be extended, managers must have complete buy-in to their value. Most employees who utilize caregiver-friendly policies will fall into a protected category.

These types of fledgling caregiver discrimination legal claims, while presently on shaky ground, will likely go hand-in-hand with other, well-recognized claims, such as “sex-plus” theories of discrimination.

Elizabeth A. Falcone is a shareholder in the Portland, Ore., office of Ogletree, Deakins, Nash, Smoak & Stewart. She can be reached at