Caregiver Discrimination Can be Costly for Employers

The Center for WorkLife Law notes in its report that employment cases, particularly discrimination cases, are known for being difficult for employees to win – with one study documenting win rates of less than 30% for discrimination plaintiffs who went to trial, and less than 4% for discrimination plaintiffs who sought summary judgment. However, employees alleging family responsibilities discrimination, by contrast, prevail 50.7% of the time.

The report, Family Responsibilities Discrimination: Litigation Update 2010, says verdicts and settlements in family responsibilities discrimination cases can be large. The Center’s analysis of over 2,100 cases found four were over $10,000,000, including two class actions; another 21 were over $1,000,000, typically including large punitive damages awards; and the average verdict or settlement was $578,316.

The analysis also found most (88%) plaintiffs in caregiver discrimination cases are female, and female plaintiffs won in 51.6% of cases, while male plaintiffs won in 41.9% of cases.

According to the report, lawsuits filed by employees with family caregiving obligations have increased almost 400% in the past decade, a time during which the overall number of employment discrimination cases filed decreased.

The analysis found some key case trends:

• New Supervisor Syndrome – Many family responsibilities discrimination cases are brought by employees with family care obligations who were performing well and balancing family and work until their supervisor changed. The new supervisors often cancel flexible work arrangements, change shifts, or impose new productivity requirements. On occasion, comments made by the new supervisors indicate that they take these actions intending to push family caregivers out.
• Second Child Bias – In a significant subset of cases, mothers report little discrimination until they become pregnant with a second child or a multiple birth. Once a supervisor becomes aware that a female employee will have more than one child, he or she often takes preemptive personnel action, apparently based on the assumption that the employee will no longer be sufficiently committed to work because of her additional family responsibilities.
• The Elder Care Effect – In a growing number of cases, employees are discriminated against because they take time off to care for their aging parents. As in Second Child Bias cases, supervisors in elder care cases often act preemptively, seemingly based on the assumption that the employees’ commitment to work will be affected.

The report is here.