Law at Work: Discrimination against caregivers
Our bookkeeper recently informed us that her child is experiencing health problems and needs routine treatments for the foreseeable future. Our busiest season is approaching, and we are concerned that she may need to take a lot of leave to be with her son. In order to help ease her burden and ensure her workload is covered, we would like to reduce her hours to part-time and hire a temporary employee to make up the difference in hours. She and her son would still be eligible for our company’s group health insurance. Is this legal?
While it is understandable that you are trying to anticipate your company’s needs and respect the family obligations of your employees, the course of action you suggest potentially exposes your company to liability. Your question suggests that your bookkeeper has not made a request to alter her schedule or to take leave; instead you are assuming that her son’s condition will negatively impact her attendance or job performance.
One of the potential issues relates to gender stereotyping. Because the number of employees with caregiving responsibilities continues to rise, the Equal Employment Opportunity Commission (the “EEOC”), the federal agency that enforces federal anti-discrimination laws, has issued guidance to employers on the unlawful treatment of caregivers. The EEOC warns that even if employers have benevolent intentions, gender-based stereotyping may constitute discrimination. Although your employee does not enjoy protected status as a caregiver, per se, she is protected from discrimination based on her gender. Employers’ potential liability for discrimination arises because employers would not typically make the assumptions or employment decisions after learning that a male employee’s child needs on-going medical treatment, but yet do so when the caregiver employee is a female. In addition, if her son has a disability, she is potentially covered under discrimination laws based on her “association” with an individual with a disability.
Instead of immediately taking action based solely on your assumptions, consider having a conversation with your bookkeeper now. Simply acknowledge that you understand her child will be needing treatment for a medical condition and ask her if she will be requesting any time off from work to accompany him to appointments or to care for him. If you are covered by the Family and Medical Leave Act (“FMLA”), and she needs leave to care for her child, her leave is unpaid but job protected, and, depending upon the type of leave she needs, you may be permitted to assign her to a different position, without the loss of pay or benefits, that better suits the leave anticipated. Be sure to provide her with the new Notice of Eligibility and Rights and Responsibilities Form under the FMLA If she acknowledges that she would like to take time off or reduce her hours, have a conversation with her about her needs. Then, carefully review your company’s policies and the applicable state and federal laws that entitle employees to leave. Engage the assistance of employment counsel if you are unsure of your obligations. If, on the other hand, if your bookkeeper declines the need for leave, tell her who she should contact if she decides otherwise in the future. Unless and until an issue arises with her attendance or her performance, you should take no unilateral action with respect to reducing her hours or changing her position.
Published in Cape Business July/August 2009
