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Expect an increase in discrimination lawsuits. Complaints from workers who need to care for family members are increasing and likely to grow markedly as more baby boomers find themselves sandwiched between young children and aging parents. The lawsuits may involve violations of the Family and Medical Leave Act, various state laws or antidiscrimination regulations.
Damage awards can be significant. In one case, a hospital maintenance worker won an $11.65-million suit after his supervisors retaliated against him for taking leave to care for his aging parents. One of them was dying and the other had Alzheimer's disease. In another, a Maryland state trooper won $665,000 after being denied sick leave to care for his newborn. His supervisor told him that his wife, who was ill at the time, would have to be dead or in a coma before he could qualify for leave. Maryland law permits state employees to take paid sick leave to care for a young child.
The recent rulings expand the traditional definition of discrimination established by courts over many years. They include:
- Firing an employee who becomes pregnant.
- Failing to promote women with children while promoting women without children or men with children.
- Refusing to excuse mothers of young children from rotating shifts while agreeing to do so for fathers in similar situations.
- Failing to hire or rehire parents with children who have disabilities.
To minimize legal exposure, employers should consider amending antidiscrimination policies in writing to include family caregiving responsibilities. They should also train supervisors so they know what constitutes caregiver discrimination, and they should examine hiring, attendance and promotion policies to make sure they are free from biased standards.
The Center for WorkLife Law, which has studied the discrimination issue, offers a model policy for employers at http://www.uchastings.edu/?pid=3624.
Surprisingly, even companies that have been nationally recognized for their family-friendly policies, such as IBM and UPS, have been sued for this kind of discrimination. That suggests a need for employers to train their supervisors over a sustained period of time, says Joan Williams of the Center. "You don't change institutional culture overnight."
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