COVID-19, Working Mothers, and Anti-Discrimination Protections for Caregivers in New York City

The COVID-19 pandemic has harmed almost everyone, but working mothers represent a group hit especially hard. Many working moms have been forced to choose between their careers and their children, with countless thousands having to leave the workforce (or been fired) with no recourse. Fortunately, here in New York, the law recognizes caregivers as a protected group and so, if your employer fired you or took some other negative action because you were meeting your COVID-triggered parental obligations, you may have a case for caregiver status discrimination. If that happened to you, you should definitely take the time to get in touch with a knowledgeable New York City workplace discrimination lawyer to discuss your situation.

Statistics from the federal government tell the tale of working moms in the pandemic, and it’s not a pretty sight. The Bureau of Labor Statistics reported that in excess of 2.3 million women departed the workforce since the pandemic began. Research from the Census Bureau revealed that, of the women aged 25-44 who left the workplace, more than 32% of them cited childcare issues as the reason.

Last March, Time published a piece entitled “These Mothers Wanted to Care for Their Kids and Keep Their Jobs. Now They’re Suing After Being Fired.” Four of the out-of-work moms in the Time story lived in places like Florida, Ohio, Michigan, or Rhode Island, so their lawsuits’ prospects were hazy at best. The fifth, however, has a stronger case. That’s because she worked in Brooklyn and was entitled to pursue her caregiver discrimination case under the auspices of the New York City Human Rights Law.

The woman, R.T., was a nurse who worked as a breastfeeding and nutrition counselor for a hospital. When the counselor’s children’s school closed to in-person learning in the spring of 2020, the counselor asked permission to work remotely. According to the nurse, her employer initially ignored her “for a long time,” then eventually denied the request.

The counselor filed a formal caregiver discrimination complaint with the hospital’s human resources staff. The hospital declared the nurse “absent without leave” and then terminated R.T. not long afterward.

R.T. sued, so the hospital filed a motion asking the judge to dismiss the lawsuit. The court recently rejected that motion. The counselor’s success at this phase of her case points to just how broad and how effective a tool the anti-discrimination provisions of the NYCHRL can be.

NYC’s Anti-Discrimination Laws are ‘Uniquely Broad’ to ‘Maximize Deterrence’

The NYCHRL was amended in 2015 to add caregiver status as a protected class under the city’s anti-discrimination laws. New York City law is clear that “the NYCHRL is intended to provide uniquely broad and remedial protections for the civil rights of all persons within the statute’s scope” and that the courts should construe the NYCHRL’s anti-discrimination provisions very broadly in favor of discrimination plaintiffs “to maximize deterrence of discriminatory conduct.”

The judge in R.T.’s case took note of the particular predicament that faced caregivers like this nurse. The court took “judicial notice that, during the ongoing COVID19 pandemic, caregivers like Plaintiff have been faced with the difficult decision whether to send their vaccinated and/or below-vaccination age children to childcare in order to continue being employed.”

R.T.’s employer, in its motion to throw out the lawsuit, strongly argued that it was not liable because the counselor did not make sufficient allegations that she was treated less favorably than others. The court explained that this was not how the law worked and that the woman did not need to advance such assertions to have a viable case.

In this case, the nurse alleged that she was the mother of three minor children, that she was qualified for her counselor job (having successfully served in the role since 2018,) was able to continue doing that job via remote work “or another arrangement,” and was declared absent without leave and eventually fired shortly after she lodged a formal complaint asserting caregiver status discrimination.

These allegations alone were enough for a viable claim of caregiver status discrimination and to defeat a motion to dismiss, especially given how broad the application of New York City’s anti-discrimination laws are, according to the court.

The Smaller the Temporal Gap, the Stronger Your Retaliation Case May Be

What’s more, R.T.’s allegations also made for a viable case of retaliation. Her complaint said that she filed a formal complaint of caregiver status discrimination and was declared absent without leave from work and terminated within a month after making the complaint.

To have a case of retaliation in New York City, you need to show that you engaged in a protected activity, that you suffered an adverse action at work, and that a “causal connection” linked the former to the latter. One of the strongest ways to meet that “causal connection” requirement is to show the closeness of time between your protected action and the alleged punishment. R.T.’s formal discrimination complaint was an obvious protected activity and, given that she was declared AWOL and fired within a month of making that complaint, the “temporal proximity” (a/k/a closeness of time) of those events made for a viable assertion of a causal linkage.

Whether you need to pursue a case based on caregiver discrimination or some other form of discrimination, and whether you’re proceeding under the NYCHRL, state law, or federal law, your case deserves a dedicated and powerful advocate. Look to the experienced New York caregiver discrimination attorneys at Phillips & Associates to provide that kind of representation to you. Contact us online or at (212) 248-7431 today to set up a free and confidential consultation and find out how we can help you.

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