The Next Protected Class: Caregivers

Since 1964, federal laws have made it illegal for an employer to discriminate in employment on the basis of race, national origin, color, ethnicity, religion and gender. These are known as “protected classes” of employees–the ones that you as an employer must carefully handle when it comes to hiring, promoting, compensating and firing.

Since the Civil Rights Act of 1964, the list of protected classes has increased to include age, pregnancy, disability, sexual and other harassment, veteran’s status, and even genetic information. Contrary to popular belief, sexual orientation is not a protected class under federal or Texas law. Also, there is no municipal ordinance in the Texas Panhandle protecting an employee on the basis of his sexual orientation.

The next category of protected employees that I expect to see is the category of “caregivers”. This no longer means just protecting women who have small children at home. The definition of caregiver includes those who also have to care for elderly parents or disabled adult children.

In April 2009, the Equal Employment Opportunity Commission (“EEOC”) released a set of guidelines to “help” employers eliminate possible discrimination against caregivers, under the guise of eliminating sexual discrimination, since caregivers are overwhelmingly likely to be women. A disability discrimination claim might also be used by a caregiving employee. The Family and Medical Leave Act has already been expanded to provide 26 weeks of unpaid leave to those employees who must care for a wounded military family member.

Understand that no law has been passed by Congress specifically prohibiting employers from discriminating against caregivers. There is no state law protecting caregivers. This is simply the EEOC’s way of coming in the back door to try to create a new protected class of employees who can sue their employers. The EEOC is urging employers to voluntarily adopt best practices for dealing with employees with caregiving responsiblities, such as flex-time policies or sick leave practices that cover not only the employee but those for whom the employee cares.

Since the EEOC’s guidelines are not statutory requirements, you don’t have to change anything in the way you are providing time off or flexibility to your employees right now. But keep a close eye on this legal area of caregivers as a protected class. I predict that in five years, you will have to reasonably accommodate caregivers just like you would the disabled.

Are there any proactive steps you can take now to prepare for this inevitable change? If you are updating your employment policies, I really like a “personal days” policy or “Paid Time Off” policy rather than days off labeled as vacation and sick leave. If you allow your employees to accrue 1-2 days per month in undesignated time off that can be used for vacations, sick leave, children’s school activities, elderly parent’s doctor’s appointments, funerals, and other personal issues, your employees already have the flexibility necessary to be caregivers and good employees.

Leave a Reply