WorkLife Law Research Leads to Groundbreaking Legislation

U.S. Senator Cory Booker (D-NJ) has introduced legislation that expands protections for family caregivers from discrimination by their employers, consulting with and drawing heavily on research from the Center for WorkLife Law at UC Hastings that shows that caregivers have long faced discrimination in the workplace, which data confirm is increasing.

The Protecting Family Caregivers from Discrimination Act, introduced June 5, 2020, would prohibit employers from firing, demoting, mistreating, refusing to hire, or taking other adverse employment action against workers who are caregivers for loved ones. The bill would also prohibit employers from retaliating against a worker for seeking enforcement of these discrimination protections and establish a grant program to assist in preventing and combating such discrimination.

Currently, many caregivers are ineligible for any form of protection under federal law and face discrimination in the workplace due to their family caregiving responsibilities. This has been a longstanding issue, but the COVID-19 pandemic has brought it to the fore.

“This comprehensive and balanced bill will help employees with caregiving responsibilities do right by both their families and their employers, and will help employers tap the full talent pool,” said Joan C. Williams, Distinguished Professor of Law and Founding Director of the Center for WorkLife Law. Booker’s staff consulted with Williams and the Center in drafting the legislation and relied heavily on Center research.

According to the Center for WorkLife Law, the number of cases of those discriminated against for family responsibilities increased from 873 in the years between 1996 and 2005 to 3,223 in the years between 2006 and 2015.

“The support and services family caregivers provide their loved ones are critical in maintaining their wellbeing,” Sen. Booker said in a press release. “Most family caregivers are employed and work to balance the responsibilities of their job while also providing that care. It is unacceptable that workers are being discriminated against simply because they have responsibilities outside of the workplace. Just about every working person has the potential to become a caregiver at some point in their life, and it is imperative that we create protections and provide the support needed to make sure that they can continue to care for their loved ones while they work.”

For Williams, the legislation is the culmination of 20 years of advocacy and research into what is now known as Family Responsibilities Discrimination (FRD), also called caregiver discrimination. This is employment discrimination against workers based on their family caregiving responsibilities.

“When I began my work to counter workplace discrimination against mothers, a prominent inside-the-Beltway feminist told me that motherhood was about choices, not discrimination, and that I was going to trash Title VII because I didn’t recognize that,” Williams said. “In the absence of express coverage of discrimination against mothers based on caregiving responsibilities, WorkLife Law has been successful in gaining rights under Title VII.”

“Workers with caregiving responsibilities should be expressly covered by Title VII because some workers, notably those caring for elders, currently have very few legal rights. I opposed legislation in the past, but this bill is unlike all the others: it could really help not only workers with caregiving responsibilities, but also their employers, who currently have to navigate the complexities of 17 different legal theories to figure out what rights caregiving employees have. COVID-19 could unleash a new wave of discrimination against mothers, for example, so this bill could not be more timely.”

Even prior to COVID-19, pregnant women, mothers and fathers of young children, breastfeeding women, and employees with aging parents or sick spouses or partners encountered family responsibilities discrimination. They may be rejected for hire, passed over for promotion, demoted, harassed, or terminated — despite good performance — because their employers make personnel decisions based on stereotypical notions of how the employee will or should act given their family responsibilities, Williams said.

With COVID-19, an increasing number of family caregivers have to juggle work with their caregiving responsibilities, in a completely new way, and face new threats of discrimination. In many parts of the country, women and mothers are disproportionately represented in the COVID-19 essential workforce.

As of 2020, AARP found that 53 million Americans are caring for their sick loved ones at any given time and 61% of them work full time. Also, according to a report by the Center for WorkLife Law, between 2006 and 2016, family responsibilities discrimination cases increased 269%. It also found that six out of 10 caregivers received a form of retribution by their employers once it was discovered that they were caregivers. Examples include employers cutting back on an employee’s work hours and issuing poor performance reviews.

Full text of the bill is available here.