A New Kind of Employment Discrimination?

More and more employees are finding that they need to take time away from their jobs to care for their elderly loved ones.  It may be for a short time around a medical crisis, or they may need to provide ongoing care services to someone who is unable to manage her activities of daily living on her own.

If absences from work or the need to take more phone calls result in negative job consequences, the caregiver-employee may be a victim of a  growing  phenomenon called Family Responsibilities Discrimination (“FRD”).  According to J.C. Williams and S. Bornstein in their 2008 article “The Evolution of FRD and Developments in the Law of Stereotyping and Implicit Bias,” Hastings Law Journal 59; 1131-58, FRD results when an employer evaluates an employee with caregiver responsibilities based on its preconceived ideas about how employees should behave, rather than the employee’s actual performance and ability to meet his goals.

Currently, the federal government and most states don’t prohibit discrimination based on family responsibility, although it may be possible to demonstrate that the caregiver-employee is being treated differently than another employee of a different gender, or that the employer is creating a hostile work environment.

Rather than looking to the courts, a better approach might be open communication, both to inform your supervisor about the impact on your schedule, and to work together to come to a solution.  With more and more employees facing the issues of caring for elderly adults, at the same time that organizations of every size are challenged with finding and retaining the best employees, increasing employers’ understanding about what so many employees are facing and collaborating to devise creative solutions would benefit everyone.

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