Articles Posted in Caregiver Discrimination

CaregiverIn 2016, New York City amended its anti-discrimination statute to prohibit discrimination in employment based on caregiver duties. Several state and federal employment laws address discrimination on the basis of certain caregiving responsibilities, but New York City’s law covers a much wider range of people. Few, if any, cases interpreting this law have made their way through the courts in the last year. A look at a few New York court decisions that pre-date the new law, however, can provide an idea of where legal protection for caregivers was needed.

The New York City Human Rights Law (NYCHRL) protects employees from discrimination on the basis of “caregiver status.” N.Y.C. Admin. Code § 8-107(1)(a). It defines a “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” Id. at § 8-102(30)(a). A “care recipient” is either a “covered relative” or someone living with the caregiver, who has a disability and “relies on the caregiver for medical care or to meet the needs of daily living.” Id. at § 8-102(30)(b). Finally, a “covered relative” could be a child, spouse or partner, sibling, parent, grandparent, grandchild, or mother- or father-in-law. Id. at § 8-102(30)(c).

A “caregiver,” under the NYCHRL, may therefore include not only parents but also people caring for a sick or disabled parent or other relative, regardless of sex or gender. This is an important feature of the statute, since caregiver discrimination has often had a close relation to discrimination on the basis of sex. A New York City federal court ruled on a class action alleging caregiver discrimination under anti-discrimination and equal pay statutes in Kassman v. KPMG, LLP, 925 F.Supp.2d 453 (S.D.N.Y. 2013). The plaintiffs alleged multiple discriminatory practices, including “treating pregnant employees and mothers differently from non-pregnant employees, male employees, and non-caregivers.” Id. at 460. Unfortunately, the court dismissed several of the claims, finding that “caregiver…discrimination [is] not actionable under” state and federal equal pay laws. Id. at 473.

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pregnant womanWorkers in New York City who are pregnant or who have recently given birth are protected by multiple statutes against pregnancy discrimination. While protections against losing one’s job or suffering a pay cut due to pregnancy, to name only two possible examples, are critically important, they do not address another major issue. The United States is one of the very few countries in the entire world that make no provision whatsoever for paid family leave, including parental leave after childbirth. Only four states currently have paid family leave systems. New York will become the fifth such state in 2018, when a bill signed into law in April 2016 takes effect.

The federal Family and Medical Leave Act (FMLA) guarantees a certain amount of unpaid family leave for qualifying workers of covered employers. In addition to the fact that the leave is unpaid, many employers do not fall under the FMLA’s jurisdiction, and workers have to meet certain benchmarks for the total number of hours worked in order to qualify. As a result, the FMLA’s helpfulness is limited. Most of the world’s nations provide some form of paid family leave. Canada and the United Kingdom, for example, provide six months to one year of paid family leave. Germany, Sweden, Japan, and most countries in Eastern Europe provide a year or more. According to the World Policy Center, the United States joins Papua New Guinea and Suriname in offering no paid leave at all.

Aside from New York, four states have enacted paid family leave laws:  California, New Jersey, Rhode Island, and Washington. Three of those states have implemented paid leave programs as of mid-2016. Washington has not been able to get its program started yet, reportedly due to a lack of provisions for funding in the bill. New Jersey’s program uses a temporary disability insurance program funded by employer and employee contributions. It is available for a variety of situations, including parental leave within 12 months of the child’s birth, for a period of up to six weeks. N.J. Rev. Stat. §§ 43:21-27(o), 43:21-38.

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child and fatherThe United States is one of the few countries in the world that make no legal provision for paid parental leave. Many companies voluntarily offer paid maternity leave, and some also offer paid paternity leave. The issue of providing paid leave for new mothers has received some attention—without much action—in the U.S. in recent years. Allowing new fathers to take time off from work to care for a newborn has not received as much attention. The federal Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., requires covered employers to allow unpaid medical leave in certain circumstances, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits sex discrimination in employment. These laws and recent amendments to the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq., give new fathers some ability to fulfill their role as a parent without risking their job, but without any guarantee of pay for the time they take off.

A United Nations survey of 185 countries in 2014 identified only two countries with no legal mandate for paid maternity leave:  the United States and Papua New Guinea. Far fewer countries require paid paternity leave. The same UN report found that, out of 167 countries with available data, only 79 require paid or unpaid paternity leave. These range from one unpaid day of leave in Tunisia to 90 paid days in Iceland and Slovenia. Meanwhile, the public discourse in the U.S. surrounding this issue seems to be stuck on questions like whether or not paid parental leave actually constitutes paid vacation time.

The FMLA provides some protection for workers shortly after a child is born. It prohibits employers from denying or interfering with employees’ use of authorized unpaid leave, and it allows employees to sue for damages like lost wages and costs incurred because of a violation. 29 U.S.C. §§ 2615(a), 2617(a)(1). The NYCHRL prohibits discrimination against employees on the basis of certain care responsibilities. N.Y.C. Admin. Code §§ 8-102(30)(a), 8-107(1)(a).

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OpenClipartVectors [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayEmployment statutes at the federal, state, and city levels in New York City protect workers against certain types of discrimination related to family responsibilities. These laws protect employees from adverse actions by employers, but they do not address the conflict between needing to care for a family member and needing to go to work to earn a living. The U.S. lags far behind most of the world’s countries when it comes to paid family leave. The New York State Assembly passed a bill in February 2016 that would provide paid family leave through the state’s disability insurance program, but its companion bill is still pending in the Senate.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, prohibits employers from discriminating on the basis of pregnancy, childbirth, and certain medical conditions related to either. 42 U.S.C. §§ 2000e(k), 2000e-2(a). The New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) contain similar provisions. N.Y. Exec. L. § 296(1)(a), N.Y.C. Admin. Code § 8-107(22). Recent amendments to the NYCHRL will also protect workers with caregiving responsibilities, such as for a minor child or a sick or disabled relative, from employment discrimination.

None of the above-referenced laws, however, provide for paid leave for employees due to pregnancy, childbirth, or caregiver responsibilities. The Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., requires unpaid leave for qualified employees of covered employers, but that is as far as U.S. federal law goes.

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irenewirsing [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayLegislation signed by the mayor of New York City in January 2016, which will take effect in May, amends the New York City Human Rights Law (NYCHRL) to protect “caregivers” against employment discrimination. Int. 108-A (N.Y.C. Council, Jan. 5, 2016). The new law defines “caregiver” quite broadly, and it prohibits discrimination by employers because of an employee’s “actual or perceived status as a caregiver.” State law offers some protection for workers with caregiving responsibilities, but not as much as the NYCHRL will once the new law takes effect. Title VII of the Civil Rights Act of 1964, the federal anti-discrimination statute, does not provide much protection in this regard, as a Manhattan federal court made clear several years ago in EEOC v. Bloomberg, L.P., 778 F.Supp.2d 458 (S.D.N.Y. 2011).

The recently enacted amendments to the NYCHRL define a “caregiver” as someone who “provides direct and ongoing care for a minor child or care recipient.” N.Y.C. Admin. Code § 8-102(30)(a), as amended by Int. 108-A. “Care recipients” include individuals residing with the caregiver and “covered relatives,” who do not have to live in the caregiver’s household. Id. at § 8-102(30)(b). A care recipient is someone who “relies on the caregiver for medical care or to meet the needs of daily living.” Id. The term “covered relative” includes most familial relationships. Id. at § 8-102(30)(c). The term “caregiver” can therefore apply to parents and legal guardians of minor children, people caring for an elderly, disabled, or sick relative, and a wide range of other scenarios.

The Equal Employment Opportunity Commission (EEOC) filed suit against Bloomberg based on allegations of a pattern or practice of discrimination against employees who became pregnant and took maternity leave. The lawsuit asserted claims for pregnancy discrimination, a well-established area of law under Title VII and the Pregnancy Discrimination Act (PDA) of 1978. 42 U.S.C. §§ 2000e(k), 2000e-2(a). The case amounted to a claim that the defendant systematically discriminated against employees with new parental caregiving responsibilities. The court rejected this argument.

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fAlva [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayBoth New York City and the state of New York have recently enacted laws expanding protections against workplace discrimination based on issues affecting workers’ family or home lives. New York City’s law regarding caregiver discrimination, or “family responsibilities discrimination,” assists the many people who must juggle full-time employment with caring for an elderly or disabled relative, or another person living in their home. New York state law now prohibits employment discrimination on the basis of “familial status.” While these two laws might sound similar, they protect workers based on different criteria. Both laws offer greater protection than federal anti-discrimination law, although the Equal Employment Opportunity Commission (EEOC) offers guidance on how federal law might be able to help.

The New York City Human Rights Law (NYCHRL), under amendments passed by the City Council in January 2016 that take effect in May, applies a very broad definition of “caregiver.” It includes anyone who provides “direct and ongoing care” for either a “minor child” or a “care recipient.” N.Y.C. Admin. Code § 8-102(30)(a). The latter group, “care recipients,” consists of relatives or other people residing with the caregiver who “rel[y] on the caregiver for medical care or to meet the needs of daily living.” Id. at § 8-102(30)(b). The statute does not specify that the minor child under the caregiver’s care must be biologically or legally related to the caregiver. It only states that the care provided to the child must be “direct and ongoing.”

Caregiver status will become a protected category under the NYCHRL once the new law takes effect, meaning that employers may not discriminate against employees based solely on their caregiver responsibilities. N.Y.C. Admin. Code § 8-107(1)(a). Employers are also prohibited from inquiring about a job applicant’s caregiver status, and from stating that caregiver status is a factor in hiring decisions. Id. at § 8-107(1)(d).

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tpsdave [Public domain, (CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayEmployment discrimination against workers because of their responsibilities to provide care for someone is now prohibited under the New York City Human Rights Law (NYCHRL). This is one of the most extensive protections for caregivers in the country. In many jurisdictions, workers have little recourse against caregiver discrimination, which is sometimes also known as “family responsibility discrimination.” Federal law is not silent on the issue, but the protections offered by the Americans with Disabilities Act (ADA) are not nearly as comprehensive as those of the NYCHRL.

Under amendments to the NYCHRL that will take effect in May 2016, a “caregiver” is someone with responsibility for caring for someone who relies on them for needs ranging from ongoing medical care to the basic necessities of life. This may include any person living in the caregiver’s home, or a minor child or other close relative regardless of where they live. N.Y.C. Admin. Code §§ 8-102(30)(a)-(c), as amended by Int. 0108-2014.

“Caretaker discrimination” consists of adverse actions taken by an employer because of an employee’s caregiver responsibilities. This might include reducing an employee’s hours, paying them a lower wage, denying them opportunities for extra shifts offered to other employees, or denying them a promotion for which they were qualified, solely or principally based on the employee’s responsibilities outside work. Under the new law amending the NYCHRL, this will be considered an “unlawful discriminatory practice.” N.Y.C. Admin. Code §§ 8-107(1)(a), as amended.

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geralt [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayA new law that took effect in New York City in early 2016 offers another important protection for workers in the city. The law amends the New York City Human Rights Law (NYCHRL) to include “caregiver status” as a category protected against employment discrimination. Also known as “family responsibilities discrimination,” this type of workplace discrimination affects people who, in addition to their job, have responsibility to care for a family member in their home. The new law states that employers may not discriminate in areas like hiring, firing, promotions, job duties, and other features of employment based on a person’s caregiver responsibilities.

Federal law does not provide general protection for caregivers against discrimination and other adverse employment actions. The Americans with Disabilities Act (ADA) protects people from discrimination based on their relationship to someone with a disability, provided both the relationship and the disability are known to the employer. 42 U.S.C. § 12112(b)(4). Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, protects employees from discrimination based on pregnancy, childbirth, and medical conditions related to pregnancy, 42 U.S.C. §§ 2000e(k), 2000e-2(a), but does not extend these protections to caregivers for children and others in a more general sense. As a result, an employee has recourse under Title VII and the ADA for adverse actions taken because of, for example, pregnancy or the responsibility to care for a disabled relative, but not necessarily for having a responsibility to care for children, grandchildren, or others.

At least one New York court has expressly stated that Title VII does not apply to caregivers. In a lawsuit brought by the Equal Employment Opportunity Commission (EEOC), which alleged disparate treatment between female employees returning from maternity leave and employees returning from leaves of comparable length, a Manhattan federal court found no evidence of “a pattern or practice of discrimination…in violation of Title VII.” EEOC v. Bloomberg LP, 778 F.Supp.2d 458, 461 (S.D.N.Y. 2011). The court summarized the EEOC’s complaint as “a judgment that Bloomberg, as a company policy, does not provide its employee-mothers with a sufficient work-life balance.” Id. at 485. It even quoted Jack Welch, the former CEO of General Electric, who stated that “[t]here’s no such thing as work-life balance.” Id.

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HebiFot [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayNew York City made history at the beginning of 2016, when a new law took effect that expands the protections of the New York City Human Rights Law (NYCHRL) to people with full-time care responsibilities for family members and people residing in their homes. The new law prohibits discrimination against an employee or job applicant based solely on their status as a “caregiver,” which is sometimes also known as “family responsibilities discrimination.” The law does not, however, offer a specific definition of the responsibilities that make a person a protected “caregiver.” It may also leave open to interpretation the extent to which an employer has an affirmative obligation to provide reasonable accommodations to an employee who is also a caregiver. This could lead to conflict, including litigation, over how to enforce the law.

The NYCHRL offers some of the broadest protection of any anti-discrimination statute in the country. Federal law protects employees from discrimination on the basis of sex, race, religion, color, national origin, and in some cases, age and disability. New York City goes much further, adding protected categories like sexual orientation, gender identity and expression, criminal history, current employment status, and now caregiver status.

A “caregiver,” for the purposes of the NYCHRL, is a person who “provides direct and ongoing care for a minor child or a care recipient.” N.Y. Admin. Code § 8-102(30)(a). The NYCHRL defines a “care recipient” as someone who is either a “covered relative” or who lives with the caregiver, and who “relies on the caregiver for medical care or to meet the needs of daily living.” Id. at § 8-102(30)(b). Finally, it defines a “covered relative” as someone with a family relationship to the caregiver, such as a “child, spouse, domestic partner, parent, sibling, [or] grandchild or grandparent.” Id. at 8-102(30)(c). What might prove to be ambiguous in future disputes are the meanings of “relies on…for medical care” and “to meet the needs of daily living” in § 8-102(30)(b).

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