On June 5, 2020, new federal legislation was introduced that would protect family caregivers from workplace discrimination. Introduced by United States Senator Cory Booker (D-NJ), the Protecting Family Caregivers from Discrimination Act would make it unlawful for an employer to (1) fail or refuse to hire an applicant because of the family caregiver responsibilities of the applicant; or (2) take adverse action or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because of the family caregiver responsibilities of the employee. The proposed law would also make it unlawful for an employer to interfere with or restrain the employee from exercising his or her rights under the act, and to retaliate against an employee for seeking enforcement of these protections.
The Protecting Family Caregivers from Discrimination Act would be enforced by the Equal Employment Opportunity Commission (“EEOC”), and violations would requireproof of disparate treatment by an employer or the disparate impact of an employer’s policies on a caregiver employee. An employee alleging discrimination under this Bill would have a private right of action against his or her employer without being required to file a charge through the EEOC or exhaust any other administrative remedies first.
Primary caregiver discrimination has long been an inadequately addressed problem in our work force, with advocacy groups, research centers, and legal projects fighting for appropriate protections for decades. This legislation is supported and endorsed by many of those groups, including the Center for WorkLife Law, National Employment Law Project, the National Alliance for Caregiving, the Caregiver Action Network, Caring Across Generations, the National Women’s Law Center, A Better Balance, National Partnership for Women & Families, The Arc of the United States, and the National Domestic Workers Alliance.According to a report from the Center for WorkLife Law at the University of California-Hastings, the number of employees reporting caregiver discrimination in the workplace increased almost four-fold from 2005 to 2015. The Center for WorkLife Law also reports that 60% of caregiver employees suffer retaliatory action from employers for having family responsibilities, including reduced hours and negative performance reviews. As of 2020, the American Association of Retired Persons (AARP) found that 53 million Americans care for their dependent family members and 61% of them do so while working at a full-time job.
The problem of primary caregiver discrimination is also one of gender and race discrimination, as it has a disproportionate impact on women and especially women of color. The problem has only gotten worse since the Covid-19 pandemic, in which Covid-related job loss has affected womenin greater numbers than men.From February to May 2020, 11.5 million women lost their jobs compared with 9 million men, with Hispanic women experiencing the steepest decline in unemployment. When employment figures rebounded slightly in May, they did so for every population except Black women, according to an analysis by the National Women’s Law Center. By the end of April, women’s job losses had erased a decade of their employment gains. Women, especially women of color, are more vulnerable to sudden losses of income because (1) they already make less money than men for comparable work, also known as the gender-pay gap, and (2) they are more dependent on childcare and school to be able to go to work. Covid-related job losses have had a particularly severe impact in industries where Black and Hispanic women hold a disproportionate number of jobs, such as hospitality.
The Protecting Family Caregivers from Discrimination Act would advance gender and racial equity while helping to level the playing field for those at a socio-economic disadvantage and for employees who care for children and family members with disabilities. “The Covid-19 crisis has exposed how the care work performed primarily by women has long been, and continues to be, undervalued,” Emily Martin, Vice President for Education and Workplace Justice at the National Women’s Law Center said. “Women and mothers are disproportionately represented in the essential workforce, and they are being forced to put their own health and the health of their families at risk to perform these jobs, while shouldering increased caregiving responsibilities as schools and child care providers remain closed.”Debra L. Ness, President of the National Partnership for Women and Families, said “The bill advances gender equity, as care work is still disproportionately performed by women. And it includes provisions we know are essential to ensure equitable caregiving policies that advance racial justice – an inclusive family definition, robust outreach and enforcement, and safeguards against retaliation.” Bethany Lilly, Director of Income Policy at The Arc of the United States said “Many people with disabilities rely on family caregivers, something that has only increased as the pandemic has impacted the disability service system,” and “Covid-19 has left all caregivers struggling to balance work and being there for their loved ones—it is incredibly important that caregivers be protected now and as we reopen.”
The Families First Coronavirus Response Act (“FFCRA”) was signed into law on March 18, 2020 in order to provide workers with expanded family and sick leaves for reasons related to Covid-19 including school and child care closings. But many employees are ineligible for FFCRA, for instance health care workers, emergency responders and those who work for companies with over 500 employees. Perhaps even more importantly, the FFCRA is temporary. Primary caregiver employees will benefit from Senator Booker’s proposed legislation as it will provide protections for them to finally be able to care for their families while remaining active, income-positive members of the workforce.