Title: Caregiver Discrimination Michigan ACE
1Caregiver DiscriminationMichigan ACE Womens
Network
- Kristine Moore
- Assistant General Counsel, MSU
- June 2015
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3Background
- BUREAU OF LABOR STATISTICS, DEPT OF LABOR, WOMEN
IN THE LABOR FORCE A DATABOOK 1 (2006).
4- Mothers of young children are twice as likely to
be employed today as their counterparts 30 years
ago - Percentage of mothers with children under 3 in
labor force - 1975 34
- 2005 59
- BUREAU OF LABOR STATISTICS, DEPT OF LABOR, WOMEN
IN THE LABOR FORCE A DATABOOK 1 (2006), Table 7.
5More Women Than Men are Caregivers
- 66 of caregivers are female
- National Alliance for Caregiving and AARP (2009),
Caregiving in the U.S. National Alliance for
Caregiving.
6Total time couples with children spend working in
U.S. has increasedWeekly work hours of married
couples with children under 181969 55
hours2000 66 hoursBUREAU OF LABOR STATISTICS,
DEPT OF LABOR, WOMEN IN THE LABOR FORCE A
DATABOOK 1 (2006), Table 7.
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8Care for Elders
- Women provide about 70 of unpaid elder care
- Peggie R. Smith, Elder Care, Gender, and Work
The Work-Family Issue of the 21st Century, 25
Berkley J. Emp Lab. L. 351, 360 (2004).
9Care for individuals with disabilities
- Nearly a third of families have at least one
family member with a disability - U.S. Census Bureau, Disability and American
Families 2000, at 2, 16 (2005).
10Women of Color Impacted More Significantly
- Female heads of household
- African American households 22
- Hispanic households 14
- White households 5
- Eldercare responsibilities
- African American and Hispanic women 33
- White women 20
- Women of color devote more time to caring for
extended family, including grandchildren and
elderly relatives. - Lynette Clemetson, Work vs. Family, Complicated
by Race, N.Y. Times, Feb. 9, 2006, at G1
Population Reference Bureau Diversity, Poverty
Characterize Female Headed Households U.S.
Census Bureau, Grandparents Living with
Grandchildren 2000, Table 1 (2003).
11Socioeconomic
- The caregiving time burden falls most heavily on
lower-income women - 52 of women caregivers with incomes at or below
the national median of 35,000 spend 20 hours
each week providing care. - Marks, N. Lambert, J. D., Choi, H. (2002).
Transitions to caregiving, gender, and
psychological well-being A prospective U.S.
national study. Journal of Marriage and Family,
64, 657667.
12Male Caregivers?
- Caregiving is statistically still predominantly
female - However, men have increased caregiving (tripled
since 1965) - Donna St. George, Fathers Are No Longer Glued to
Their Recliners, Was. Post, Mar. 20, 2007, at A11.
13CAREGIVER DISCRIMINATION
14Employment Actions
- Recruitment
- Hiring
- Promotion
- Transfer
- Wages and benefits
- Work assignments
- Leave
- Training and apprenticeship programs
- Discipline
- Layoff and termination
15Example Discrimination Analysis
- Sue Kim alleges she is being discriminatorily
paid less than her male counterparts. - The employer cites Kims performance as the
reason for her lower pay. The investigator then
compares the compensation of Kim and similarly
situated employees, according to the factors the
employer says go into salary (experience (Exp.)
and performance rating (Perf.))
16Example Discrimination Analysis
- The employers explanation for Kims salary is
credible because it accounts for the pay
disparity. While Kim has the same amount of
experience as Smith, Kims performance rating is
one point lower. - As long as there is no evidence that the
performance rating itself was discriminatory. - The 3000 difference between the pay of Kim and
Smith is in line with the 3000 differences
between the pay of Smith and the other male
employees. The evidence does not indicate
discrimination.
17Laws at Play
- Family Medical Leave Act
- Title VII of the Civil Rights Act
- Americans with Disabilities Act
- Pregnancy Discrimination Act
- State laws
18Legal Issues
- Pregnancy discrimination
- Gender discrimination
- Gender role stereotyping
- FMLA violations
- Race and national origin discrimination
- Harassment gender, race, national origin,
pregnancy - Significant Legal Development EEOC Guidance
19Pregnancy Negative Stereotypes
- One study managers associated the following
terms with pregnant employees - Overly emotional
- Irrational
- Moody
- Preoccupied
- Undependable
- Physically limited
- Another study pregnant women are subjected to
lower performance ratings than others with
identical behavior and performance - Joan C. Williams, Beyond the Maternal Wall
Relief for Family Caregivers Who are
Discrimination Against on the Job, 26 Harv.
Womens L.J. 77 (2003).
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21Pregnancy Discrimination
- Kocak v. Community Health Partners of Ohio, 2005
(federal appellate court governing Michigan) - Walsh v. National Computer Systems, 2003
22Pregnancy accommodations
- Supreme Court case Young v. UPS, 575 U.S. __
(2015) - Peggy Young was a UPS driver who asked the
company to give her a less demanding shift when
her doctor told her not to lift heavy items while
pregnant. - UPS said it offered light duty work to workers
injured on the job, covered by ADA or lost their
DOT certification, but not pregnant workers. - UPS didnt let her work with her restriction
- Required to go on extended, unpaid leave, during
which she lost her medical coverage - Lower courts said decision was gender-neutral and
pregnancy-blind
23FMLA
- Wojan v. Alcon, 2008 (Michigan federal court)
24Gender Discrimination
- Part-time employees Fair Pay?
- Lovell v. BBNT Solutions, 2004
25Stereotyping of Women as Caregivers
- Back v. Hastings on Hudson Union Free School
District, 2004
26Maternity Leave
- Childers v. Penn, filed April 2014
- Docket 22014cv02439
27Male Caregivers
- Case study
- Fred returns from a 6 week paternity leave.
- He is shunned by those dolling out the
assignments in his IT group. - Though no one says it out loud, there is a sense
that it was unprofessional to take paternity
leave for more than a day or two and although
they could not stop him, they were annoyed at
having to pick up his slack and were not inclined
to give him a warm welcome on the way back in.
28Race discrimination
- Case Study
- Margaret, an African American woman in a
department, alleged race discrimination after she
was denied comp time to use to fill in when she
does not have enough PTO and her sitter cancels. - The Employer says she cannot use it because any
absences must be taken under the official
attendance policy. - What information would you want to determine
whether discrimination?
29Disability Discrimination
- Association Discrimination Case Study
- Joes wife, Mary, has Multiple Sclerosis
- Joes supervisor is aware of this Joe has to
take time off to care for her and seems
distracted at work occasionally - Joes supervisor does not put Joes name in the
group of those being recommended for leadership
training because he thinks Joe wont have the
time to devote to the extra work.
30Best Practices
- Cultural shift
- Work-life balance policies
- Known to increase productivity and profits and
decrease absenteeism - Ensure chairs and supervisors know them
- Look at implementation not just policy language
- Contribute where you can to the discussion
- Educate about legal rights and responsibilities
- Ensure job openings and promotions are
communicated to all eligible employees - Ensure employment decisions are objective,
well-documented and transparent - Provide equal access to workplace networks