Caregiver Discrimination Michigan ACE

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Caregiver DiscriminationMichigan ACE Womens
Network

• Kristine Moore
• Assistant General Counsel, MSU
• June 2015

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Background

• BUREAU OF LABOR STATISTICS, DEPT OF LABOR, WOMEN
  IN THE LABOR FORCE A DATABOOK 1 (2006).

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• Mothers of young children are twice as likely to
  be employed today as their counterparts 30 years
  ago
• Percentage of mothers with children under 3 in
  labor force
• 1975 34
• 2005 59
• BUREAU OF LABOR STATISTICS, DEPT OF LABOR, WOMEN
  IN THE LABOR FORCE A DATABOOK 1 (2006), Table 7.

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More Women Than Men are Caregivers

• 66 of caregivers are female
• National Alliance for Caregiving and AARP (2009),
  Caregiving in the U.S. National Alliance for
  Caregiving.

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Total time couples with children spend working in
U.S. has increasedWeekly work hours of married
couples with children under 181969 55
hours2000 66 hoursBUREAU OF LABOR STATISTICS,
DEPT OF LABOR, WOMEN IN THE LABOR FORCE A
DATABOOK 1 (2006), Table 7.
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Care for Elders

• Women provide about 70 of unpaid elder care
• Peggie R. Smith, Elder Care, Gender, and Work
  The Work-Family Issue of the 21st Century, 25
  Berkley J. Emp Lab. L. 351, 360 (2004).

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Care for individuals with disabilities

• Nearly a third of families have at least one
  family member with a disability
• U.S. Census Bureau, Disability and American
  Families 2000, at 2, 16 (2005).

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Women of Color Impacted More Significantly

• Female heads of household
• African American households 22
• Hispanic households 14
• White households 5
• Eldercare responsibilities
• African American and Hispanic women 33
• White women 20
• Women of color devote more time to caring for
  extended family, including grandchildren and
  elderly relatives.
• Lynette Clemetson, Work vs. Family, Complicated
  by Race, N.Y. Times, Feb. 9, 2006, at G1
  Population Reference Bureau Diversity, Poverty
  Characterize Female Headed Households U.S.
  Census Bureau, Grandparents Living with
  Grandchildren 2000, Table 1 (2003).

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Socioeconomic

• The caregiving time burden falls most heavily on
  lower-income women
• 52 of women caregivers with incomes at or below
  the national median of 35,000 spend 20 hours
  each week providing care.
• Marks, N. Lambert, J. D., Choi, H. (2002).
  Transitions to caregiving, gender, and
  psychological well-being A prospective U.S.
  national study. Journal of Marriage and Family,
  64, 657667.

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Male Caregivers?

• Caregiving is statistically still predominantly
  female
• However, men have increased caregiving (tripled
  since 1965)
• Donna St. George, Fathers Are No Longer Glued to
  Their Recliners, Was. Post, Mar. 20, 2007, at A11.

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CAREGIVER DISCRIMINATION
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Employment Actions

• Recruitment
• Hiring
• Promotion
• Transfer
• Wages and benefits
• Work assignments
• Leave
• Training and apprenticeship programs
• Discipline
• Layoff and termination

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Example Discrimination Analysis

• Sue Kim alleges she is being discriminatorily
  paid less than her male counterparts.
• The employer cites Kims performance as the
  reason for her lower pay. The investigator then
  compares the compensation of Kim and similarly
  situated employees, according to the factors the
  employer says go into salary (experience (Exp.)
  and performance rating (Perf.))

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Example Discrimination Analysis

• The employers explanation for Kims salary is
  credible because it accounts for the pay
  disparity. While Kim has the same amount of
  experience as Smith, Kims performance rating is
  one point lower.
• As long as there is no evidence that the
  performance rating itself was discriminatory.
• The 3000 difference between the pay of Kim and
  Smith is in line with the 3000 differences
  between the pay of Smith and the other male
  employees. The evidence does not indicate
  discrimination.

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Laws at Play

• Family Medical Leave Act
• Title VII of the Civil Rights Act
• Americans with Disabilities Act
• Pregnancy Discrimination Act
• State laws

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Legal Issues

• Pregnancy discrimination
• Gender discrimination
• Gender role stereotyping
• FMLA violations
• Race and national origin discrimination
• Harassment gender, race, national origin,
  pregnancy
• Significant Legal Development EEOC Guidance

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Pregnancy Negative Stereotypes

• One study managers associated the following
  terms with pregnant employees
• Overly emotional
• Irrational
• Moody
• Preoccupied
• Undependable
• Physically limited
• Another study pregnant women are subjected to
  lower performance ratings than others with
  identical behavior and performance
• Joan C. Williams, Beyond the Maternal Wall
  Relief for Family Caregivers Who are
  Discrimination Against on the Job, 26 Harv.
  Womens L.J. 77 (2003).

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Pregnancy Discrimination

• Kocak v. Community Health Partners of Ohio, 2005
  (federal appellate court governing Michigan)
• Walsh v. National Computer Systems, 2003

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Pregnancy accommodations

• Supreme Court case Young v. UPS, 575 U.S. __
  (2015)
• Peggy Young was a UPS driver who asked the
  company to give her a less demanding shift when
  her doctor told her not to lift heavy items while
  pregnant.
• UPS said it offered light duty work to workers
  injured on the job, covered by ADA or lost their
  DOT certification, but not pregnant workers.
• UPS didnt let her work with her restriction
• Required to go on extended, unpaid leave, during
  which she lost her medical coverage
• Lower courts said decision was gender-neutral and
  pregnancy-blind

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FMLA

• Wojan v. Alcon, 2008 (Michigan federal court)

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Gender Discrimination

• Part-time employees Fair Pay?
• Lovell v. BBNT Solutions, 2004

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Stereotyping of Women as Caregivers

• Back v. Hastings on Hudson Union Free School
  District, 2004

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Maternity Leave

• Childers v. Penn, filed April 2014
• Docket 22014cv02439

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Male Caregivers

• Case study
• Fred returns from a 6 week paternity leave.
• He is shunned by those dolling out the
  assignments in his IT group.
• Though no one says it out loud, there is a sense
  that it was unprofessional to take paternity
  leave for more than a day or two and although
  they could not stop him, they were annoyed at
  having to pick up his slack and were not inclined
  to give him a warm welcome on the way back in.

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Race discrimination

• Case Study
• Margaret, an African American woman in a
  department, alleged race discrimination after she
  was denied comp time to use to fill in when she
  does not have enough PTO and her sitter cancels.
• The Employer says she cannot use it because any
  absences must be taken under the official
  attendance policy.
• What information would you want to determine
  whether discrimination?

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Disability Discrimination

• Association Discrimination Case Study
• Joes wife, Mary, has Multiple Sclerosis
• Joes supervisor is aware of this Joe has to
  take time off to care for her and seems
  distracted at work occasionally
• Joes supervisor does not put Joes name in the
  group of those being recommended for leadership
  training because he thinks Joe wont have the
  time to devote to the extra work.

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Best Practices

• Cultural shift
• Work-life balance policies
• Known to increase productivity and profits and
  decrease absenteeism
• Ensure chairs and supervisors know them
• Look at implementation not just policy language
• Contribute where you can to the discussion
• Educate about legal rights and responsibilities
• Ensure job openings and promotions are
  communicated to all eligible employees
• Ensure employment decisions are objective,
  well-documented and transparent
• Provide equal access to workplace networks