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Excerpted From: Alaina Harwood, Caregiver Discrimination in the Wake of the Covid-19 Pandemic, 33 Hastings Journal on Gender and the Law 79 (Winter 2022) (147 Footnotes) (Full Document)

AlainaHarwoodCaregiver discrimination is a serious and far-reaching issue for American workers that has been recognized only in recent decades. Caregiver discrimination, also known as Family Responsibilities Discrimination (FRD), occurs when an employer discriminates against its workers because they have family caregiving responsibilities at home. It typically occurs when an employer acts on unexamined biases about how employees with caregiving responsibilities will or should act. For example, an employer may assume that a new mother will not be as committed to her job after having a child, or that a man should not request paternity leave since women are typically the primary caregivers. These are just a few of the numerous examples of stereotypes that fuel caregiver discrimination.

Women often face the brunt of caregiver discrimination, because in most families, women are the primary caregivers. They spend considerably more time than men performing care work at home, and they are more likely than men to sacrifice their job for caregiving responsibilities. Not only are women primarily responsible for childcare within their immediate families, but they are also the primary caregivers for the elderly, which includes caring for parents, in-laws, and spouses. Not surprisingly, the responsibilities of caring for ill and disabled family members also fall primarily on women. Although caregiving responsibilities disproportionately impact working women as a whole, some women feel the effects more than others-women of color and immigrants, in particular, are more likely than their white counterparts to devote time to caring for elderly family members.

In recent years, men in the U.S. have taken on more caregiving responsibilities. Between 1965 and 2003, the amount of time that men spent on childcare nearly tripled, and in 2015, 40% of family caregivers were male, up from the 1990's when less than 20% of family caregivers were men. Although this changing trend is worthy of celebration, women are still disproportionately assuming the majority of caregiving responsibilities at home, and thus are more vulnerable to caregiver discrimination in the workplace.

There is currently no federal law offering protection to workers from discrimination based solely on caregiving status. To remedy this, workers have relied on different statutes and theories to prove that they have suffered from caregiver discrimination, for example, by showing they were discriminated against based on a protected characteristic or status. As of 2008, the Center for WorkLife Law had identified seventeen legal theories under state and federal law that workers with caregiving responsibilities have used in litigating caregiver discrimination. Although there are numerous legal theories plaintiffs can use to show that they have suffered from family responsibilities discrimination, this paper will limit its discussion to a handful of them, as they relate to the cases discussed in Part II.

One statute that plaintiffs have relied on when litigating FRD is Title VII. In Chadwick v. Wellpoint, a worker successfully alleged that her employer violated Title VII's prohibition on sex discrimination when she was denied a promotion, because her employer's decision was based in part on the sex-based stereotype that women who are mothers, particularly of young children, neglect their jobs in favor of their childcare responsibilities. Workers also have a valid cause of action under the Americans with Disabilities Act (“ADA”) if their employer discriminates against them based on their association with an individual with a disability. Additionally, violations of the Family Medical Leave Act (“FMLA”) may support claims of FRD. Although courts are more receptive to recognizing valid claims for caregiver discrimination under these statutes, these laws are still limited in their ability to protect workers from FRD, particularly at the federal level.

Fortunately, some state and local laws provide broader protections for caregivers. While some states have better protections for caregivers, including laws creating caregiver protections, they are few and far between, leaving many people vulnerable to suffer from caregiver discrimination at the hands of their employer. The issue of caregiver discrimination has become even more apparent in recent years, with the Center for WorkLife Law reporting in 2016 that FRD cases have risen 269% over the last decade. FRD is an increasingly pervasive issue among American workers, and the current legislation has left many employees open to attacks from their employers because of caregiver status.

B. Onset of the COVID-19 Pandemic

In December 2019, an unidentified virus emerged which resulted in a worldwide pandemic. This novel coronavirus, now known as COVID-19, was officially declared a pandemic by the World Health Organization in March 2020, and on March 13, 2020, the White House declared a national emergency in the U.S. This resulted in the majority of states issuing shelter-in-place and lock-down orders, with 43 governors between March and April 2020 issuing orders directing residents to stay at home and for nonessential businesses to close. Schools and daycares all over the country suddenly closed, leaving workers everywhere without childcare.

The immediate impact of the COVID-19 pandemic was tremendous. By April 2020, 60% of licensed childcare providers were fully closed, 30 million Americans filed unemployment claims, and the number of active business owners in the U.S. fell by 22%. As of June 2020, it was estimated that 50 million workers had childcare obligations affected by school and daycare closures. Due to the closures, there were 1.6 million fewer mothers in the labor force in the fall of 2020 than would generally be expected. Because school and daycare closures left workers without childcare, many women were forced to choose between their job and their families, resulting in large numbers of women quitting their jobs. Although there are men who have had to quit their jobs or cut their hours to care for their children during the pandemic, the COVID-19 crisis has highlighted the fact that women disproportionately bear the brunt of caregiving responsibilities when unexpected things occur--this has been called the “gendered fallback plan.” The pandemic not only exacerbated existing gender disparities, but it also led to an uptick in caregiver discrimination against workers with caregiving responsibilities.

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A. Limitations of Current Laws

Although aggrieved workers relied on numerous statutes to allege they suffered from caregiver discrimination, there are limitations from current laws that have prevented workers all over the country from being able to assert a viable cause of action for caregiver discrimination during the COVID-19 pandemic. For starters, the FFCRA, which was relied on by the majority of plaintiffs in the cases filed, was only effective from April 1, 2020 to December 31, 2020. This means that workers who would have otherwise been eligible for leave under FFCRA were not covered if they needed leave from work for a COVID-19 related reason outside the law's window of applicability.

Another limitation under FFCRA is that it allowed employers of health care providers or emergency responders, as well as employers with over 500 employees, to exclude employees from the Act's requirements. These employer exclusions left up to 106 million private sector workers unable to access the paid leave provisions under FFCRA during a global pandemic. Furthermore, employers have tried arguing that they are exempt under the Act by reasoning that they satisfied the requirements for one of the employer exclusions. In one of the cases filed during the pandemic and discussed earlier, the defendant employer argued that it was considered an emergency responder under the FFCRA. It relied on the Department of Labor's Guidance on FFCRA, which included public works personnel under the definition of emergency responder, and reasoned that because it was an arborist employed exclusively for public utility customers, it met the definition for a public works personnel employer. Although the motion to dismiss was denied, the court held that the issue of whether the defendant was exempt from the FFCRA's paid leave provisions was yet to be determined. This case highlights a potential issue for plaintiffs who claim they were entitled to leave and protections under the FFCRA-as more cases for FFCRA violations are filed, the more likely employers will argue that they are excluded from the Act's requirements. Thus, FFCRA's already limited protection to workers may be further narrowed as the statute's provisions get challenged by employers in current and future litigation.

FMLA, another statute numerous plaintiffs relied on in these caregiver discrimination suits, is also quite limited in scope. In order to qualify for FMLA leave, an employee needs to work for a covered employer with 50 or more employees, have worked for their employer for at least a year, and worked a minimum of 1,250 hours. A Department of Labor survey from 2012 found that only 59% of employees were covered and eligible to take FMLA leave, which meant that over 40% of workers in the U.S. were not able to access the job-protected leave of FMLA. In addition to the limited reach of FMLA, many workers who are eligible to take FMLA leave are unable to exercise their rights to leave because they cannot afford to take unpaid time off from work. Thus, millions of workers do not have access to job-protected leave at the federal level, which is an especially pressing issue given the fact that employees now, more than ever, need access to leave because of the horde of issues the COVID-19 pandemic created.

The ADA is another federal statute that is limited in its ability to protect workers who are associated with or related to a person with a disability. Although the ADA prohibits associational disability discrimination, it does not require that employers provide a reasonable accommodation to employees who are associated with someone with a disability. The EEOC also makes clear that employees were not entitled to accommodations at work under the ADA to avoid exposing family members at higher risk of severe illness from COVID-19 due to underlying medical conditions. This was an issue for many workers in the cases filed during the pandemic-many requested accommodations to work remotely or go on leave to protect their immunocompromised or disabled family members from getting exposed to COVID-19, which resulted in many of them suffering adverse action from their employers. The limits on the ADA's Association Provision have already negatively impacted workers that are caregivers to immunocompromised family members during the COVID-19 crisis.

B. Potential Policies to Combat Caregiver Discrimination

The COVID-19 pandemic has made it abundantly clear that caregiver discrimination is a significant issue for workers across the country and that we need better protection for workers with caregiving responsibilities. Luckily, there are several policy initiatives designed to combat caregiver discrimination within the U.S. One policy proposal is to make caregiver status a protected characteristic at the federal level, similar to Title VII's protections against discrimination on the basis of sex or race. Another proposal is to allow reasonable accommodations to workers that live with disabled or immunocompromised individuals. Other policy proposals focus on improving access to leave, such as increasing the reach of FMLA to guarantee job-protected leave to more workers or expanding upon the reasons for when employees can take FMLA leave. Finally, a widely supported proposal is to implement a paid leave policy.

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Although caregiver discrimination in the U.S. is not a new issue, the COVID-19 Pandemic exposed the severity of the problem and brought to light the few protections, if any, workers have from being discriminated against based on their caregiver status. The plaintiffs from the lawsuits discussed in this paper are only a small number of the workers that were impacted by the circumstances the COVID-19 crisis created, as many more workers were denied coverage under the few statutes currently in place. The COVID-19 pandemic highlighted the drastic need for change in how we protect and treat caregivers in the workplace, and the suggested policy proposals are a step in the right direction for trying to prevent workers from experiencing caregiver discrimination.

J.D. Candidate at the University of California, Hastings College of the Law, Senior Staff Editor for Hastings Journal on Gender and the Law.

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