Page 90 - An Indispensible Resource for Being a Credible Activist

Unlawful disparate treatment of a caregiver also can arise under the Americans with
Disabilities Act of 1990 where an employer discriminates against a worker based on his or
her association with an individual with a disability.
The new enforcement guidance illustrates various circumstances under which discrim-
ination against a caregiver might violate federal EEO law. Examples include the following:

● Treating male caregivers more favorably than female caregivers
● 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
niece and nephew based on the assumption that, as a female caregiver, she won’t
want to work overtime
● Subjective decision-making: Lowering subjective evaluations of a female employee’s
work performance after she becomes the primary caregiver of her grandchildren,
despite the absence of an actual decline in work performance
● Making assumptions about pregnant workers: Limiting a pregnant worker’s job
duties based on pregnancy-related stereotypes
● Discriminating against working fathers: Denying a male caregiver leave to care for
an infant under circumstances where such leave would be granted to a female
caregiver
● Discriminating against women of color: Reassigning a Latina worker to a lower-
paying position after she becomes pregnant
● Stereotyping based on association with an individual with a disability
● 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
● Subjecting a female worker to severe or pervasive harassment because she is a
mother with young children
● Subjecting a female worker to severe or pervasive harassment because she is
pregnant or has taken maternity leave
● Subjecting a worker to severe or pervasive harassment because his wife has a
disability 2

FMLA abuse by employees is also a very serious issue and can take many forms. Some
employees fill out FMLA medical certification forms themselves. Some employees fake ill-
nesses and convince medical doctors to fill out forms for them. There are even some med-
ical providers who will certify that an employee or an employee’s close family member has
a serious illness when that is in fact untrue. These situations present unique challenges that
require delicate handling. HR professionals who suspect that any of this may be happening
are advised to consult with their internal or external labor counsel, their own supervisor(s),
and the supervisor of the employee presenting the FMLA forms.

CHAPTER 5 • Legal Issues Concerning Compens ation, Insurance, Leave 73