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Are you unintentionally discriminating against staffers with family?

There’s a fairly new area of discrimination to watch out for, and it applies to staff as well as to employee physicians. It’s family responsibility discrimination, or discrimination against employees who take time off to serve as caregivers for family members. And related to that is discrimination against both women and men who take time off for maternity and child care. Family caregivers are increasing in number as baby boomers become responsible for their elderly parents and sick spouses and partners, says Baltimore employment law attorney Cynthia Thomas Calvert.

In fact, today people take more time off to care for sick parents than they do for sick children. And both men and women are taking maternity leave.

While no federal law addresses caregiver discrimination directly, what many employers don’t realize is that caregiving is protected under Title VII of the Civil Rights Act, which covers offices with 15 or more employees. There are also state laws that cover it. And along with that is the federal Pregnancy Discrimination Act. Consequently, caregiving and pregnancy discrimination is “a happening area” that’s generating a lot of litigation, Calvert says.

Hiring, promotions, evaluations

With both caregiving and pregnancy, watch for discrimination in hiring, promotion requirements, and job evaluations, Calvert says. That means don’t ask job candidates questions about family responsibilities. It also means making sure there are no requirements for promotion, particularly for the physicians, that a caregiver or parent can’t meet. But mostly it means keeping the performance evaluations clear of discrimination. The downfall that managers need to watch for, she says, is the assumptions that commonly creep into reviews. One, for example, is the assumption that caregivers are less valuable than other employees because they take time off from work. Another is that women are less valuable than men because they lose time to pregnancy and to family responsibilities. Yet another is that women are less committed to work than men are. When a mother misses a deadline, it’s often blamed on child care while a man doing the same thing is excused on the assumption that he was too busy with other work.

To make the evaluations bias-proof, she says, define the rating scale so the office never has to explain why it gave a score of 4 to a male physician with a note that he “meets expectations” and the same score to a female physician who “surpasses expectations.” Tell what the numbers mean, perhaps that 3 is “meets expectations” and 4 is “above expectations but still has room for improvement” and so on. Another good bias-proofer is for the manager and supervisors to write down their comments before assigning the number ratings. With the reasoning already laid out, the score tends to reflect whether the employee actually has met expectations or has surpassed them or whatever.

Also, she says, be especially careful of changes that show up in the evaluations after somebody takes leave. If the reviews get noticeably worse after an employee becomes a caregiver, there had better be documentation illustrating a decline in the actual performance. Otherwise, the caregiving looks to be engendering retaliation.

Pregnancy and its risks

Be careful with pregnancies too, Calvert says. The Pregnancy Discrimination Act says an employer can’t discriminate against or refuse to hire a woman because of pregnancy or childbirth. To do so is sex discrimination. A woman who is temporarily unable to perform her job because of pregnancy or childbirth has to be treated the same as any other temporarily disabled employee.

Large offices generally stay clear of that because they have enough resources to cover a new mother’s absences. But that’s not always so for smaller offices. It’s not even unknown for an employer to try to drive a pregnant woman out by not allowing her time off for medical appointments or by giving her an ultimatum of “you need to choose” between the work schedule the obstetrician recommends and the hours required to keep the job.

What can the office ask about?

Can the office ask a job candidate about caregiving or pregnancy? The legal answer, Calvert says, is that an employer can ask if it will affect the person’s ability to perform the job, but to be fair, the questions have to be asked of the men as well as the women. When a manager focuses on the women, that’s when it becomes illegal. The practical answer, however, is that there’s nothing wrong with talking about it. Just make it clear that the questions are being asked because “we want you to succeed here.”

Yet another policy

For safety, Calvert says, add a statement to the discrimination policy that the office does not discriminate because of family responsibilities or pregnancy. And for protection, send out a notice of it with a memo of “we don’t believe we have ever discriminated based on family responsibilities or on pregnancy, but we want everyone to know our intent in this regard.” Moreover, make sure the maternity leave policies apply to the men as well as to the women.

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