The XX Factor

Americans Are Filing More Lawsuits Alleging Caregiver Discrimination. Here’s Why.

More parents are fighting for their right to take care of their families without being discriminated against at work. 

omgimages/ Thinkstock

New research from the University of California, Hastings’ Center for WorkLife Law finds a 269 percent increase in lawsuits alleging family responsibilities discrimination in the last decade, compared to the previous decade. These findings are detailed in a new report by Cynthia Thomas Calvert, which looks at which types of cases have become more common and how the growing number of caregivers who called foul fared in their attempts to seek justice.

Two-thirds of these cases involved pregnancy and maternity leave. Pregnancy accommodation cases increased by 315 percent, a number that’s surprising when you consider that such discrimination has been illegal since 1978. Lawsuits over breastfeeding also spiked by 800 percent, though the total number of these cases remains small.

Advertisement

The other lawsuits alleged discrimination against those taking care of an aging parent, sick child, or sick spouse. Compared to the previous decade, cases involving eldercare rose considerably, increasing by 650 percent. (Forty percent of these suits were brought by men.) 

Advertisement
Advertisement
Advertisement

The report also notes that employees win caregiver discrimination cases at a higher rate than other employment discrimination cases. Overall, employees alleging family responsibilities discrimination, which occurs in every industry, prevail in 52 percent of the cases, a figure that includes verdicts in bench and jury trials, settlements, damage awards, arbitration, and other methods of resolving lawsuits. Among lawsuits that go to trial, employees win 67 percent of the time. Plaintiffs odds are even better in cases that go to federal court: 75 percent of them result in victories for employees, compared to a 28-to-36-percent win rate for general employment discrimination cases in federal court. 

Advertisement

What accounts for the increase in family responsibilities discrimination lawsuits? Calvert names several factors, including a rising number of households in which all adults work, a rising number of adults over the age of 65 who require care, and a rising number of family members with disabilities (likely a result of a 2008 amendment to the Americans with Disabilities Act that expanded the definition of “disability”). Additionally, more men are becoming caregivers, and therefore demanding more accommodations from their employers.

Above all, these lawsuits reflect a shift in expectations among employees about their employer’s ability to make family care compatible with their professional life. Family responsibilities discrimination “typically arises as the result of clashing expectations, exacerbated by the changing demographics of the workforce,” Calvert writes. “Employees’ expectations that they should be able to care for their family members, raise their children, and support their parents, frequently collide with employers’ expectations that employees will be ‘ideal workers’—those who can work full-time, full-force for 40 years or more with no time off for childbearing or childrearing, or other caregiving.”

Advertisement
Advertisement

There’s one factor Calvert doesn’t mention, because it hasn’t changed much: the number of laws protecting new mothers and other caregivers at the workplace. While there has been some movement in this direction, including a federal and number of state statutes offering more protection for pregnant women, the rise in these lawsuits is far more the result of a culture change than a legal one. Indeed, the most recent federal law most commonly used in these cases is the Family Medical Leave Act, which was passed in 1993.

Advertisement

Recently there’s been a debate about whether feminism has let itself down by becoming too comfortable with mushy culture change instead of boots-on-the-ground legal activism. (See Jia Tolentino’s recent essay on the commodification of female “empowerment,” and Andi Zeisler’s new book We Were Feminists Once: From Riot Grrrl to CoverGirl®, The Buying and Selling of the Feminist Movement.) Indeed, feeling empowered and actually having more power don’t always line up, and there are a lot of people aiming to make a buck from by deceiving women into believing they are one and the same. But Calvert’s report suggests that cultural shifts and legal shifts aren’t a zero-sum game. A zeitgeisty feminism that’s spread via internet chatter, music videos, advertisements, and corporate talking heads, can change the way women (and men) see themselves. And after they change the way they see themselves, they might very well expect the world to see them the same way too. It’s difficult to quantify this sort of shift, but parents’ increased willingness to challenge sexist and outdated notions of how they should be treated at work suggests that culture changes might be leading some to a place of genuine empowerment.

Advertisement