5 Ways to Avoid Caregiver Discrimination Claims

It comes down to treating caregivers with the same respect afforded to other employees

Posted by Cynthia Thomas Calvert in Code of Conduct, Discrimination, Employment Law, Human Resources on August 22nd, 2012

Employees who care for family members are often treated differently and paid less than other employees, perhaps because employers unconsciously devalue them based on stereotypes. This is particularly true of mothers – studies show that employers frequently offer mothers lower wages and hold them to different standards.

Employees use the Equal Pay Act and Title VII’s sex discrimination prohibition on disparate treatment to challenge wage disparities and use a variety of laws to challenge family responsibilities discrimination. One recent case, Rector v. County of Blair, Pennsylvania (Nov. 2011) provides a roadmap for employers of how not to handle these types of cases.

 Disparate Treatment

A public defender notified her employer that she was pregnant and worked out her schedule for leave with her boss. Throughout her pregnancy, he made comments about her appearance, repeatedly asked her if she really wanted to return to work and suggesting she might want to stay home with her baby, and asking another public defender if he knew of anyone who would be interested in her position. He also made her fill out time cards, which other lawyers did not have to do.

She had her baby and returned to work on a part-time basis. While full-time, she had been paid a salary less than that of a male public defender and her part-time hourly rate was less than two male lawyers who worked part-time. Her boss began reviewing her time cards himself after she returned from leave. Less than a month after her leave ended, he fired her for time card falsification for allegedly claiming she worked for four hours on two days when she left early. She sued for violation of the Equal Pay Act and disparate treatment under Title VII, among other things.

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The employer compounded its legal problems once it got to court. The lawyer’s boss:

  • changed the dates on which he said the lawyer had falsified her time cards
  • had no explanation for why he hadn’t asked her if she was working out of the office those days interviewing witnesses, going to court, or attending meetings
  • had no explanation for why she was made to fill out time cards when others were not
  • had no explanation for why he himself began overseeing her hours but not the hours of other lawyers

The court found that the lawyer had provided enough evidence, including the stereotyped and sexist remarks about her pregnancy and likely return to work, to suggest that discrimination was the real reason she was fired. It denied the employer’s motion for summary judgment on the disparate treatment claims.

The employer couldn’t justify the pay discrepancies, either. The reasons it gave for paying the male full-time defender a larger salary – more management skills and the fact that he was almost qualified to handle death penalty cases – were not sufficiently persuasive because the employer did not show that he used his management skills in his job and the public defender’s office rarely tried death penalty cases. And the employer didn’t even try to explain away the difference in pay between the plaintiff and the two male part-time lawyers.

5 Tips for Employers

There are several key take-aways for employers here:

  • Do not make assumptions about whether women will return to work after maternity leave, and certainly do not harass pregnant employees
  • Do not require pregnant employees to account for their time or meet certain face-time standards if not required of other employees
  • Review compensation decisions to make sure that pay discrepancies can be justified by legitimate business reasons such as seniority, merit or production levels, skills or experience that are actually necessary for the job, and the like
  • Investigate apparent wrongdoing by employees before jumping to conclusions, including giving them a chance to explain
  • When terminating an employee, give the truthful reason and do not change the reason once in court.

Cynthia Calvert
Cynthia Calvert

Employment Lawyer, Founder and Principal of Workforce 21C

Cynthia Thomas Calvert, president of Workforce 21C, is an employment lawyer and a nationally-recognized expert in Family Responsibilities Discrimination law. Through training and consulting, she helps employers manage today’s evolving workforce, with an emphasis on advancing women, preventing discrimination based on family caregiving, gender, and pregnancy, reducing unconscious bias, implementing effective flexible work programs, and creating inclusive workplace cultures.

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