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Family Responsibilities Discrimination a Growing Issue for Sandwich Generation

As the U.S. workforce ages, baby boomers are increasingly juggling their paid jobs with their unpaid work as family caregivers.  The average family caregiver in the United States today is a 49-year old woman who works outside the home and spends the equivalent of an additional half-time job (nearly 20 hours per week) providing unpaid care to a parent, according to a survey published by the National Alliance for Caregiving and AARP.

As eldercare becomes more prevalent, workers in the "sandwich generation" - those between the ages of 30 and 60 - are more likely to face the pressure of childcare and eldercare while struggling to keep a job.   Among U.S. workers, about 42 percent report providing unpaid eldercare in the past five years, according to a 2010 study by Families and Work Institute. U.S. businesses lose up to $25 billion annually from full-time working caregivers due to absenteeism (Gallup).

Consider the risks associated with family responsibilities discrimination (FRD)*:

  • Lawsuits filed by employees with family caregiving obligations have increased almost 400 percent in the past decade; 
  • Employees prevail in almost half of the cases, far more frequently than in other types of employment cases;
  • Verdicts and settlements average over $500,000.

*Source:  The Center for Worklife Law (2010)

Family Responsibilities Discrimination (FRD) arises from the unfair treatment of workers with caregiving responsibilities, including workers caring for children, older adults, ill spouses, or other family members with disabilities.  FRD can occur when workers are criticized or disciplined for taking personal days for caregiving responsibilities, while non-caregiving employees are not.  Rules may also be applied unequally to working caregivers, such as when working caregivers are required to make up missed hours, while non-caregivers are not. 

Employers often treat employees with eldercare responsibilities differently for reasons that relate more to their need to alter their schedule than to take a leave of absence.  Caregivers typically need reduced hours or more flexible schedules, in addition to the need to communicate throughout the workday with a parent or provider.  Employers tend to interpret this behavior as a lack of commitment to the job. The sudden onset and intensity of eldercare can create friction between a worker and supervisor.  

While the Family and Medical Leave Act explicitly makes caring for parent, child or spouse with a serious health condition eligible for leave, it covers only about half of American workers.   Local laws are currently the most common form of employment protection for working Americans caring for older adults.  Localities in 22 different states have laws that prohibit discrimination against employees with certain family caregiving responsibilities.  Local laws often apply to the smallest of employers with two-thirds of these laws covering businesses too small to be covered by federal statutes. 

How can you avoid the risk of a discrimination lawsuit and accommodate valued employees who are struggling to balance work and caregiver responsibilities?  

Consider adopting the following key practices:

  • Make sure you have a company policy against family responsibilities discrimination and spell it out clearly in your employee handbook;
  • Train your supervisors with a clear set of do's and don'ts.  A supervisor who allows an employee flexibility to attend classes, for example, cannot refuse to show similar flexibility for an employee caring for a parent or child;
  • Provide workplace flexibility, such as flex-time, compressed work weeks, part-time, or telecommuting options, to increase retention of valued employees and reduce absenteeism;
  • Establish predictable schedules for hourly employees.  Just-in time schedules that change from day to day or week to week make it extremely difficult for families to arrange care.  Shifting to more effective scheduling techniques may help employees cope with the demands of work and caregiving;
  • Offer caregiver support, resources or referral services to employees as part of your EAP program.  Additional assistance may be available through state programs;
  • Talk to your HUB broker about Employment Practices Liability Insurance (EPLI). This coverage may cover the defense of discrimination lawsuits as well as the cost of judgments against your company.

With so many caregivers in the workforce and so much lost productivity at stake, it is important that employers understand their risks, train supervisors on their legal obligations, and identify ways to support their employees.