The Caregiver Conundrum.

• Author: Rehaut, Grace
• Position: NOTE

Table of Contents Introduction I. Setting the Stage: Caregiver Rights from the Twentieth Century Onward A. An Emerging Understanding of Family Responsibilities Discrimination B. The Significant and Sweeping Impacts of Caregiver Mistreatment II. Taking Action: Causes of Action Available to Caregiver Plaintiffs A. Title VII--Sex-Plus Discrimination 1. Direct evidence 2. Indirect evidence B. Title VII--Sex Discrimination C. Title VII--Disparate Impact D. Title VII--Hostile Work Environment E. Other-ADA, EPA, and FMLA III. Looking Ahead: Opportunities for Reform A. Nondiscrimination B. Accommodation Conclusion Introduction

In 1971, General Electric Company (GE) employed around 100,000 women, (1) but though the company offered temporary disability benefits to all of its employees, it declined to include pregnancy in its list of eligible disabilities. (2) What is more, when a class of pregnant GE employees filed suit, alleging sex discrimination, they were rebuffed by the Supreme Court, which informed them that discrimination based on pregnancy was not sex discrimination at all. (3) And so history was made. Congress, taking note of the Court's decision, passed the Pregnancy Discrimination Act (PDA), which expanded the definition of sex discrimination in Title VII of the Civil Rights Act of (1964) to include adverse treatment "on the basis of pregnancy, childbirth, or related medical conditions." (4) The goal was simple yet ambitious: to "guarantee women the basic right to participate fully and equally in the work force, without denying them the fundamental right to full participation in family life." (5)

Today, a working woman who becomes pregnant (6) will reap the rewards of this legislation. Under the PDA, her condition will entitle her to special and specific protection against discrimination and harassment, whether related to her pregnancy, childbirth, or any resulting health issues. (7) Likewise, if her pregnancy limits her ability to carry out her duties at work, she will gain a right to be treated in the same way as all other employees whose abilities are similarly limited. (8) But the safeguards do not stop there. Though her pregnancy itself will not be considered a disability, any pregnancy-related impairments she suffers--whether physical or mental--may qualify for protection under the Americans with Disabilities Act (ADA). (9) This will enable access to reasonable disability-related accommodations, ranging from more frequent breaks and alterations in her job duties up to, if necessary, temporary reassignment. (10)

Yet after giving birth and taking any leave to which she is entitled, the returning employee must watch these legal protections dissipate. No longer pregnant, but now a new mother with a young child at home, she will find herself without any statutory protections at work. (11) Indeed, despite the PDA's purported aim of enabling women to balance children with careers, Title VII offers no actual protection to caregivers, (12) failing to safeguard childrearing obligations beyond the immediate, physical conditions of pregnancy and childbirth. (13) Caregivers likewise lack express protections under the ADA, (14) the Equal Pay Act, (15) the Rehabilitation Act, (16) and all other pertinent federal laws that provide workplace protections to designated employees. (17) In short, though millions of Americans with children go to work every day, Congress has failed to pass a law that directly addresses their needs. (18)

That gap in the legislative framework left Derek Tisinger, a fire engineer and single father, stranded when his supervisor began "picking on him" about his parental responsibilities. (19) After Tisinger traded shifts so that he could pick up his children from school, his supervisor warned him against such conduct and threatened that "he didn't want to hear [any more] garbage" about childcare needs. (20) Kimberly Peters, a mother who works in marketing, found herself vulnerable to a different, more paternalistic, kind of prejudice when her supervisor repeatedly denied her applications for promotion. (21) Peters's supervisor justified one of these denials in terms of her status as a parent, reasoning that he could not give her the position "because she was a mom" and therefore "could not travel" as the job's responsibilities required. (22)

Both Tisinger and Peters filed suit to protest their employers' discriminatory treatment, and both lost before courts that declined to find their claims actionable. (23) Their stories are not unique. While creative claimants have worked hard in recent years to carve out remedies for caregivers facing employment discrimination, these paths are narrow and limited. (24) Moreover, while protections for pregnant individuals have generally improved over recent decades, these advances have often masked the challenges that caregivers face after birth. (25) Caregiving employees, unlike pregnant employees, cannot fall back on statutorily defined safeguards--they must fight, carefully and cleverly, to wield each of the imprecise tools in their all-too-limited arsenal. This Note aims to highlight this group and its fight, assessing the strengths and shortcomings of current options available to caregivers as well as proposing recommendations for improvements in the law going forward.

This Note proceeds in three parts. Examining both scholarship and legal doctrine, Part I illustrates the significance of workplace discrimination against caregivers, particularly in light of the Covid-19 pandemic. Part II evaluates the main legal pathways available to caregivers, reviewing the necessary elements involved in each claim, primary challenges that complainants might face, and guiding judicial decisions. This Part identifies preferred pathways for particular plaintiffs and acknowledges the special obstacles faced by male caregivers. Finally, Part III proposes reforms for strengthening caregivers' workplace rights.

1. Setting the Stage: Caregiver Rights from the Twentieth Century Onward

   1. An Emerging Understanding of Family Responsibilities Discrimination

      In 2000, noted feminist legal scholar Joan Williams commented that "mothers have never had a cause of action under federal antidiscrimination law to challenge workplaces designed around men's social power." (26) Her book, Unbending Gender. Why Family and Work Conflict and What to Do About It, proposed a creative solution: litigating workplace bias against mothers as a form of sex discrimination under federal employment laws. (27)

      This suggestion was not entirely novel. Thirty years prior, Ida Phillips took a similar claim all the way to the Supreme Court. (28) A mother of young children who had applied for a job at Martin Marietta Corporation, Phillips was informed that women with preschool-age children were not being considered for the role. (29) That restriction did not extend to men: Several fathers already held the position, and men with young children were eligible to apply. (30) Phillips argued that this policy constituted sex discrimination because it unfavorably treated a particular group of women: mothers. (31) In other words, her claim was not one of pure sex discrimination, but of what would later be called "sex-plus" discrimination--a claim of discrimination based on sex in combination with some secondary characteristic, such as motherhood or marital status. (32)

      The district court rejected Phillips's position out of hand. Noting that Martin Marietta Corporation hired more women for the position than it did men, the court concluded that "no question of bias against women as such was presented" and granted summary judgment against Phillips. (33) The Fifth Circuit affirmed the grant of summary judgment. (34) But the Supreme Court took a closer look. (35) True, the company's policies did not treat all women unfavorably: Women without children were not harmed by the rule. Even so, the Court was unwilling to approve of the company's use of "one hiring policy for women and another for men--each having pre-school-age-children." (36) Its reversal of the Fifth Circuit's decision outlined a potential pathway for caregiver plaintiffs: It suggested that for certain claimants, discrimination on the basis of sex in conjunction with caregiver status could itself be an actionable form of sex discrimination. (37)

      Though this principle came to represent an important advance for caregivers, the sex-plus cases that followed Phillips mostly dealt with discrimination based on marital status, as opposed to family responsibilities. (38) Moreover, Phillips inspired little change in the popular perception of caregiver rights, with workplace mistreatment of parents still "not ... conceptualized as discrimination" in the public eye. (39) But in the early 2000s, Williams's thoughtful writings on motherhood inspired a new look at these issues. Her innovative idea of fighting unfair conditions for mothers through existing legal pathways--a notion inspired, in part, by the Phillips case (40)--began to resonate, stirring a response not just among mothers, but among many types of caregivers. (41) More and more caregivers began to bring discrimination suits via Title VII and other innovative causes of action; from 1996 to 2005, the number of these cases rose 400% from the decade before. (42) The news media picked up on the trend and brought it into public view. (43) The Equal Employment Opportunity Commission (EEOC) issued groundbreaking enforcement guidance adopting the caregiver theory of discrimination (44) And Williams, for her part, founded the Center for WorkLife Law, a research organization that began tracking developments in this budding area of the law under a new label: family responsibilities discrimination (FRD). (45) A 2016 survey from that organization reported that FRD cases rose another 269% over the preceding decade. (46)

      These advances brought new attention, legal and otherwise, to the workplace rights of caregivers...