During this year’s Society for Human Resource Management (SHRM) Annual Conference, I had the opportunity to attend a luncheon hosted by the SHRM Foundation. I consider the Foundation to be one of SHRM’s best kept secrets. Their mission is human resources research and education.
At the luncheon, we were given a report co-sponsored by AARP and ReACT, titled “Determining the Return on Investment: Supportive Policies for Employee Caregivers”(PDF). It’s a good read and worth your time. It also made me realize that I haven’t written much about caregiving.
So I asked Cynthia Thomas Calvert if she would share her knowledge with us, and luckily she said “yes.” She’s a nationally-recognized lawyer, researcher, speaker, and president of Workforce 21C. Through training and consulting, she helps employers manage issues related to family responsibilities, reducing unconscious bias, and creating inclusive workplace cultures. She recently authored a report about caregiver discrimination (PDF) for the Center for WorkLife Law.
And because Cynthia is a lawyer, I want to remind everyone that her comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have specific, detailed questions, you should address them directly with your friendly labor attorney.
Cynthia, let’s start with a definition. When I first heard the term caregiving, it was in the context of taking care of a parent or older family member. But I’m under the impression that it means so much more today. What’s caregiving?
[Cynthia] ‘Caregiving,’ as we use it, refers to providing care to family members, so it includes caring for young children, sick spouses, adult children or spouses who have disabilities, and aging, sick, or disabled parents. It also includes being pregnant, and taking care of or bonding with newborns and newly adopted children. We use ‘caregiver discrimination’ and ‘family responsibilities discrimination’ (FRD) interchangeably.
We’re starting to see more attention being given to the topic of caregiving. What are 2-3 trends in the area of caregiving that companies should pay attention to?
[Cynthia] The first trend, and this is really key, is that the number of caregivers is growing very quickly. The number of seniors who need care is increasing rapidly and expected to continue to increase significantly in the coming decades (in fact, in a survey, half of all employees said they expect to provide elder care within the next five years), and some chronic diseases and disabilities are on the rise (such as diabetes, dementia, and autism). In addition, more pregnant women are working and are working later into their pregnancies. As a result, it is fair to say that almost every employee will be a caregiver at some point during his or her career.
Closely related to the first trend is the trend of more males providing care. Males now provide more than 40 percent of elder care, and more males are actively involved in providing child and spousal care.
Another trend is new legislation on the state and local level that requires employers to provide accommodations to pregnant women and employees who are nursing, and to allow employees to take sick leave – without retaliation – to care for family members. Several states and many local jurisdictions also now have laws that expressly prohibit family responsibilities discrimination in employment, and a couple even require employers to consider requests for flexible work.
You mentioned accommodations. Is caregiving covered under the law (i.e. meaning organizations cannot discriminate based on a person’s status as a caregiver?)
[Cynthia] Yes and no. Almost 100 jurisdictions – including New York, Minnesota, the District of Columbia, New York City, Boston, Chicago, San Francisco, Philadelphia, Pittsburgh, and Miami – have laws that expressly prohibit employment discrimination based on family responsibilities, family status, or caregiver status.
In addition, the Americans with Disabilities Act (ADA) prohibits discrimination based on an employee’s association (including caregiving) with an individual who has a disability. But there is no federal law that expressly prohibits caregiver discrimination. In jurisdictions without an FRD law, employees who provide family care may be protected from discrimination by sex and pregnancy discrimination laws and family and medical leave laws. If a law does not apply in a particular situation, an employee might sue for wrongful discharge, breach of contract, infliction of emotional distress, and the like.
Many employers are not aware that discrimination based on caregiving can be illegal, and they find out the hard way when they are called into court or investigated by a government agency.
Given the legislative trend, should organizations consider developing caregiver policies? Why or why not?
[Cynthia] Management lawyers are of two minds on the issue of whether to have an anti-discrimination policy that prohibits caregiver discrimination. On the one hand, if the employer is in a jurisdiction that does not expressly prohibit caregiver discrimination, a policy could arguably give rise to claims that an employer otherwise might not face or encourage employees to bring lawsuits.
On the other hand, employers may be able to limit damages and avoid punitive damages if they can show that they actively worked to prevent family responsibilities discrimination by having a policy, training HR and personnel about FRD prevention, and responded promptly and appropriately to complaints of FRD.
Over time, it seems that more lawyers have shifted to the side of recommending that their clients take steps to prevent FRD because it can negatively affect a company even if the company is not sued.
Are there steps employers can take beyond writing a policy?
[Cynthia] There are plenty of other steps employers can take to prevent FRD, aside from implementing an anti-discrimination policy. One is to train supervisors and HR on what FRD is and how and why it commonly arises:
- Unconscious biases often affect how supervisors perceive employees and their work, what assignments and opportunities are given to employees, and how employees are disciplined.
- We all have biases about caregivers – some common ones are that mothers will prioritize family over work and not be committed to their jobs, and that men who actively provide care are not masculine, ambitious, or dependable.
- Supervisors might pass over mothers for challenging assignments or deny them promotions based on ‘gut feelings’ that they would not be a good fit – which is a key way that bias influences personnel decisions.
- Similarly, supervisors may try to talk men out of taking leave, thinking that they are helping the men to preserve their standing in the company, or may punish them with undesirable work or difficult schedules to make sure they (and other men) think twice before providing care in the future.
This is why training is important. These supervisors don’t think they are discriminating. In fact, most would probably tell you that they are doing what is best for the company by making sure that the best employees get ahead and that everyone works hard. The problem is that these kinds of actions can create severe stress for the employees involved, which can prevent them from performing well, and can damage the morale and productivity of their co-workers as they watch what is happening and wonder if it will happen to them as well. The caregivers may quit or be fired, and their co-workers may start looking for a better employer.
So, although the supervisors were well intentioned, they may have caused expensive attrition, loss of institutional knowledge, damage to productivity, and harm to corporate reputations. And then if the caregivers sue, a new can of worms is opened.
Training alone can’t solve FRD, of course. There are many other steps that HR can take to watch out for, prevent, and remedy FRD. Some involve policies and practices, some involve knowing triggers of FRD and providing oversight in situations where it is likely to crop up, others involve having an investigation protocol that includes FRD, and still others involve addressing the biases that cause FRD.
If my organization implements a caregiver policy and manager training, what kinds of benefits can we expect?
[Cynthia] Given that so many employees are or will be caregivers, employers who adjust to this reality can expect to become the desirable employers. Companies that earn reputations for working to prevent discrimination against caregivers and that offer programs to make it easier for employees to provide care while still continuing to work will attract more applicants and improve retention of good employees – both of which can translate to better service and lower costs. They can also expect more loyal employees who are engaged and productive, and who become brand ambassadors. And, of course, they can expect to avoid a lot of litigation expenses!
My thanks to Cynthia for sharing her knowledge and experience with us. We have a tendency to talk about illnesses and health care from an insurance perspective or a leave point of view. Organizations will need to realize the growing need to think about caregivers. An increasing number of employees are facing this situation and need our support.
Image taken by Sharlyn Lauby (psst . . . it was a wedding gift)1