Family Status Discrimination In New York: The Burdens And Breaks of the New World of Work

We are living in an age of unprecedented levels of employment among working families.  In 2015, just 6.9 percent of families in the United States included an unemployed person, down from 8.0 percent in 2014.  In fact, a whopping 80.3% of families in the United States comprised of at least one employed member in 2015.

But more employment for working family members in New York has not necessarily translated into more opportunity and well-being for those employed, particularly for those working family members caring for elderly or disabled adults.  According to a 2009 study conducted by the National Alliance for Caregiving and and the AARP, 73% of family (adult) caregivers who care for someone over the age of 18 either work or have worked while providing care; 66% have had to make some adjustments to their work life, from reporting late to work to giving up work entirely; and 1 in 5 family caregivers have had to take a leave of absence.  Given this data, of the many types of discrimination that can arise in the workplace, family responsibilities discrimination (FRD, also known as caregiver discrimination) may be the most pervasive of all.

So, if you are a family caregiver in in need of relief from discrimination, where do you turn? There are very few states that provide specific anti-discrimination laws for caregivers, and most claims of family responsibilities discrimination are justified under federal law such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Family and Medical Leave Act.  However, in January 2015, the state of New York passed a law recognizing parents and parents of minor children as a new protected category under protection of state anti-discrimination laws. Incorporated under the New York State Human Rights Law, the protected “familial status” refers to any individual who is pregnant, has children under 18 years old, or is under 18 and living with the described parent.

And, as mentioned in our previous blog post, the New York City Human Rights Law protects another similar status – “caregiver status” – as a protected class. By broadening the definition of “caregiver” to include those who provide ongoing care for any disabled person living in the caregiver’s home—including family member, spouse, domestic partner, or friend—legislators of the NYC Human Rights Law have advanced a more comprehensive definition of what qualifies as family responsibilities discrimination than other states’ laws.

A close look at the perception of caregivers in your workplace – the roles and responsibilities of caregivers, in particular – is a productive exercise for any employee concerned about the possibility of caregiver or family responsibilities discrimination. If you have experienced any of the following circumstances at your workplace in New York or New York City, you fall within a risk category for family responsibilities discrimination:

Eldercare

• After asking an employer to go on leave to care for a chronically ill parent, the employee is fired;
• An employee refuses to take his spouse, who is ill, off of his employer’s insurance plan and is terminated. (“We have paid enough for her coverage.”);
• An employee returns from leave after caring for a parent who is near death and is then fired for being “lazy.”;

An employer denies leave to an employee whose parent is unwell on the grounds that the parent’s spouse is alive to take care of her.

Caregivers of Disabled Individuals

• An employee is fired after her father, who lives with her, becomes disabled in fear of decreased attendance at work;
• An employer refuses to hire an applicant whose husband is disabled on the assumption that she may be late often of have to take leave to care for him;
• An employer denies an employee certain opportunities on the assumption that he may not be able to complete them in time because his child is disabled.

Childcare

An employer makes an employment decision on the basis that the employee or future employee:

• Has children at home, or “too many” children;
• May not be reliable because he or she has children;
• Is a single parent, foster parent, or living with or caring for a grandchild;
• Is pregnant;
• Is a father who obtained custody of one or more children and will be the primary caretaker;
• Is a mother who “should stay home with her children”.

The New York State Human Rights Law maintains that employment decisions (such as choosing to promote or hire someone) based on any other stereotyped belief or opinion about caregivers of children under 18 is unlawful.

“Caregivers are the people who keep families together,” said New York City Mayor de Blasio. “It is critical that New York City protects them so they can continue to provide essential care to the children, elderly people, and individuals with disabilities who rely on them to lead happy and healthy lives. No one deserves to be treated differently or denied opportunities in the workplace because of their status as a caregiver.” Indeed, these relatively new protections will not only substantial impact our expectations in the workplace, but also how we work.