- NYC Ban on Caregiver Status Discrimination is Now in Effect; Employers Must Think Carefully About its Impact
- June 16, 2016 | Author: Michael Scott Arnold
- Law Firm: Mintz Levin Cohn Ferris Glovsky Popeo P.C. - Boston Office
The New York City Human Rights Law now prohibits discrimination based on an individual’s actual or perceived status as a caregiver. Below, we briefly summarize the law and gauge its potential impact on the workplace.
Who Does the Law Protect?
The law adds “caregiver status” as the latest protected class under the New York City Human Rights Law. But just who is a “caregiver”? The law amends the definitions section of the Human Rights Law to answer that question by defining a “caregiver” as a “person who provides direct and ongoing care for a minor child or a care recipient.” Okay, but what does that mean? The law provides definitions for “minor child” and “care recipient,” and it defines those terms broadly:
- Care Recipient: a person with a disability who: (i) is a covered relative, or a person who resides in the caregiver’s household; and (ii) relies on the caregiver for medical care or to meet the needs of daily living. A covered relative is also defined broadly to include a caregiver’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, or the child or parent of the caregiver’s spouse or domestic partner, or any other individual in a familial relationship with the caregiver as designated by the rules of the Commission.
- Minor Child: a child under the age of 18, and a “child” means a biological, adopted or foster child, a legal ward, or a child of a caregiver standing in loco parentis.
The NYC Commission on Human Rights has released employer and employer facts sheets and a FAQ document, which provide some helpful guidance, but which also raised one question for me.
In that guidance, it identifies some examples of caregiver discrimination and provided a few hypotheticals. The examples include employers who take an adverse employment decision because the caregiver (i) has children at home; (ii) has a sick spouse; (iii) is a foster or adoptive parent; (iv) is a single parent; (v) believe that someone with children or caring for a relative with a disability will not be a “reliable” employee; or (v) believe that mothers should stay home with their children. The guidance also says that the law extends to caregivers of family or household members not just with disabilities, but also with “illnesses.” I’ve bolded the “sick spouse” and “illnesses” language because it gave me pause. Is the Commission saying that the law extends to care for relatives or other household members (other than children) that are not disabled and that may just be sick? We do not think it extends that far, but wanted to flag the issue.
This new law also goes further than the law that New York State recently passed that banning “familial status” discrimination. The difference is that the state law covers only “parent” caregivers whereas the City law goes further by also protecting caregivers to certain disabled relatives or those that live in the caregiver’s home. This law therefore, may capture a significantly larger class of protected workers, including many in the so-called sandwich generation.
What Does This Mean for Employers?
Just a few years back the EEOC sued Bloomberg L.P. claiming that Bloomberg regularly discriminated against pregnant workers and new mothers returning from maternity leave. A federal judge - Judge Loretta Preska - said Bloomberg did not engage in discrimination on a systemic level. Commentators took note of some of the language that Judge Preska included in her decision. She said that the law does not mandate “work-life balance,” and went so far as to quote GE’s former CEO, Jack Welch: “There’s no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences.” She continued: “Mr. Welch’s view reflects the free-market employment system we embrace in the United States, particularly for competitive, highly paid managerial posts,” and the law “does not require companies to ignore employees’ work-family trade-offs — and they are trade-offs — when deciding about employee pay and promotions.” It was powerful language at the time - coming almost two years before the release of Lean In - and it remains so today. But, extending legal protection to caregivers could effectively undercut Judge Preska and Mr. Welch’s views.
It also raises all sorts of questions for employers. Questions like: What are an employer’s obligations if a caregiver requests an alternative working arrangement? What if a caregiver works unpredictable hours? What if they request time off to care for a child or disabled family member that may not qualify under other leave policies?
Based on a strict interpretation of this new law and the Commission’s guidance, one might reflexively answer these questions by saying that the law does not explicitly require an employer to reasonably accommodate caregivers and that employers cannot be held liable if they otherwise treat caregivers the same as other employees. And they’d be correct, generally. (And that’s what Judge Preska was essentially saying before caregiver status became a protected class: that the Bloomberg policy required “all-out dedication” no matter who you were - if you decided to work less to take care of your children or for any other reason, you had to live with the consequences and couldn’t claim discrimination.)
But of course, the answer is never that simple. Not all accommodations are the same. Employers accommodate employees all the time for any number of legitimate business reasons, but when they do, and then deny an accommodation request to a caregiver, even if they do not deny the request because of caregiver status, most HR professionals know what can happen next. And it puts an employer in a difficult spot when trying to manager a workforce that increasingly seeks flexibility in performing their job duties. And what happens if caregivers are disproportionately affected by accommodation request denials. Are we then headed into Young v. UPS territory?
The answer becomes even less clear once you remember that you are (i) dealing with the New York City Human Rights Law, which requires judges to interpret its provisions broadly, and (ii) read the new law’s legislative history. Councilmember Deborah Rose said plainly during a hearing that the new law would protect “all caregivers from retaliation for requesting a flexible schedule” and otherwise “prohibit employers from punishing workers who request a change in the terms or conditions of their employment as they relate to caregiving responsibilities.” What does that mean? How far does that go?
And the difficulties employers face do not end with accommodation requests. Employers must also account for the realities of the modern worker and workplace where differential treatment may operate in more nuanced ways. For example, workers may claim discrimination where others stop working with them, or cut them out of important meetings or failed to staff them on the more desirable projects because of a belief that their caregiving responsibilities would make them less reliable or more difficult to work with.
Employers must think critically about how their policies and practices affect working parents and other caregivers. They must also think critically about whether their managers have the proper training to avoid differential treatment based on caregiver status, especially when it comes to performance and leave management issues. And they must think critically about how they receive and process accommodation requests. It’s one thing to make sure managers do not treat employees differently based on gender or parental status; it’s another thing to make sure they realize that the law now goes one step further to protect anyone who has direct and ongoing caregiving responsibilities.