Employers in New York City must take note, “caregivers” is considered a protected class as of May 4, 2016, under the New York City Human Rights law (“NYCHRL”). This is the first time a job category – other than military – was given protected status.
Who is a caregiver under the statute?
Caregivers include anyone who provides direct and ongoing care for a minor child or a person with a disability who: (1) is a “covered” relative, or a person who resides in the caregiver’s household; and (2) relies on the caregiver for medical care or to meet the needs of daily living.
“Covered relatives” include children (adopted, biological or foster), spouses, domestic partners, parents, siblings, grandchildren, grandparents, children or parents of the caregiver’s spouse or domestic partner, or any individuals in a “familial relationship” with the caregiver.
The NYCHRL prohibits employers from discriminating against caregivers with respect to hiring, compensation, or the terms and conditions of employment. Thus, just as employers should not ask women when interviewing for a position whether they have kids or not, employers should not ask applicants about their status as a caregiver. Despite common misconceptions, both men and women can be caregivers. This is becoming more and more common in light of the fact that many baby boomers are working longer and caring for their aging parents.
Examples of common circumstances under which discrimination against a caregiver might occur include:
– Denying women with young children an employment opportunity that is available to men with young children;
– Reassigning a woman to less desirable projects based on the assumption that, as a new mother, she will be less committed to her job;
– Reducing a female employee’s workload after she assumes full-time care of her relative based on the assumption that, as a female caregiver she will not want to work overtime;
– Lowering subjective evaluations of an employee’s work performance after he/she becomes the primary caregiver, despite the absence of an actual decline in work performance;
– Denying a male caregiver leave to care for an infant under circumstances where such leave would be granted to a female caregiver;
– Refusing to hire a worker who is a single parent of a child with a disability based on the assumption that caregiving responsibilities will make the worker unreliable.
Caregivers are not immune from Company policy.
Despite this new protected status, caregivers are not now immune from compliance with company policy. Therefore, employers can and should still require caregivers to comply with company attendance and performance policies. However, employers should proceed cautiously before executing any discipline against a caregiver. Instead, the employer should first determine that policies are being consistently applied and second that other applicable laws are considered. For instance, when a caregiver requests leave to care for his/her child, other laws such as the New York City Earned Sick Time Act, Family and Medical Leave Act, or the Americans with Disabilities Act may be implicated. Therefore, employers should train managers on all the laws that might apply.
Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
