No Such Thing As Caregiver Discrimination, But ...Michael Newman
July 24, 2008 — 1,639 views
In Chadwick, the plaintiff claimed that she was discriminated against when she was denied a promotion for which she claims to have been better qualified than her competitors. The promotion eventually went to another woman (with two children, ages 10 and 15), rather than to plaintiff (mother of four: 6-year-old triplets and an 11-year-old). In explaining the promotion denial, the decision-maker stated, "you're going to school, you have the kids, and you just have a lot on your plate right now," and that she and other supervisors would feel "overwhelmed" in the same circumstances. Accordingly, the evidence indicated that it was, at least in part, plaintiff's status as a mother of four young children that kept her from receiving the promotion at issue.
The court, however, made a point of clearly marking the line between discrimination which is actionable and that which is not. "Federal law affords no protection against discrimination if it is based solely upon young children or the number of young children. The plaintiff can prevail only if she can show that her employer used sex-based stereotyping about a mother's child-raising obligations for very young children -- as contrasted with the child-raising obligations of males with very young children -- to deny her this promotion." In this case, because "plaintiff ha[d] no evidence of preferential treatment of similarly situated males, nor of other remarks that show stereotyped assumptions about females' parenting obligations as contrasted with males'," she had no actionable claim.
In essence, this case turns on the same central point that is encapsulated in the EEOC's guidance on the issue. While caregiver status not a protected class under federal anti-discrimination laws (like gender, race, national origin, age, etc.), discriminatory treatment of caregivers can be actionable if it is based on stereotypes that do relate to a protected class. For instance, if the plaintiff in Chadwick had been able to show that males with young children were not considered by her employer to have the same child-rearing responsibilities, she would have had a case. Additionally, in a hypothetical case where an employee's caregiving responsibilities for an elderly parent or disabled relative lead to an adverse employment action, the question will not be "was he discriminated against because of his caregiver status?" but rather "was the employment decision driven by stereotypes about a protected class?" Accordingly, employers should strive to ensure that their decision-makers and decision-making processes remain clear of any such stereotypes that could taint subsequent employment decisions and leave the employer open to liability.
Michael Newman is a Partner in the Cincinnati office of Dinsmore & Shohl LLP, where he chairs the firm's Labor & Employment Appellate Practice Group. He represents a broad range of business clients, both large and small, in the state and federal courts.