Work & Family: Rulings clarify rights for special-needs caregivers
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As a human-resources executive for a consulting firm, Debra Shafer was a heavy hitter -- until her 6-year-old son was diagnosed with autism.
Her career was soon history as Ms. Shafer, of Newtown, Pa., struggled to get her son to five weekly therapy sessions, plus testing and evaluations, while scurrying to cover her bases at work. Her supervisor asked, "OK, we understand this is a crisis. When is the crisis going to be over?" she says of the incident a few years ago. The only response Ms. Shafer could give, she says, was "I don't know." Left increasingly out of the loop, cut out of emails and excluded from meetings, she wasn't surprised when she was soon laid off, says Ms. Shafer, now a special-education consultant.
Employees who care for children and other family members with disabilities face acute work-family hassles. Until recently, little attention was paid by courts and enforcement agencies. But amid an increase in lawsuits and questions from the public, new, in-depth guidance on caregivers' rights is emerging on several fronts, from court rulings to Equal Employment Opportunity Commission advisories. Chris Kucyznski, assistant legal counsel for the EEOC, sees "more interest in this area in the courts," including rulings that delve more deeply into the issue of caregivers at work. The rulings promise fairer treatment for working parents, and clearer guidelines for employers in how to manage them.
In a 2004 survey of 349 parents of children with emotional or behavioral disorders, 27 percent said they'd been fired at some point because of work disruptions arising from their children's special needs; 48 percent had quit jobs to care for their kids, say researchers at Portland State University in Oregon. In focus groups with 28 mothers of such children, the women said they lived in fear of negative performance reviews and regularly worked extended hours to make up for job interruptions because of their children's crises or appointments, say Julie Rosenzweig and Eileen Brennan, professors at Portland State, and other researchers involved in the study.
Under current law, these parents aren't entitled to special accommodations. While the Americans with Disabilities Act outlaws discrimination against caregivers to the disabled, it doesn't require employers to change schedules or job duties to oblige them. In April, a federal appeals court in Cincinnati ruled in a case called Overley v. Covenant Transport that caring for a disabled daughter didn't entitle a truck driver to miss a regular weekend shift that she had worked in the past without providing an acceptable excuse or a backup driver to fill in.
Court rulings leave room for reasonable people to disagree, however, on how much disruption at work is too much. A 2004 ruling by a federal appeals court in Chicago, Larimer v. IBM, maps out areas where employers are vulnerable to charges of discrimination against caregivers to the disabled. For example, parents can't be fired, demoted or harassed simply because they're "somewhat inattentive" at work. Employees who are distracted by family needs, but who still manage to get the job done without accommodations, are protected, the court held.
But employees and employers may disagree on whether the job is getting done. When Sidney Chen's 3-year-old son began having developmental problems, Mr. Chen's workday as a marketing director for a Silicon Valley firm was sometimes interrupted by the need to attend doctor or therapist appointments. "I thought I had it covered" by forwarding calls home and continuing to work there during the day and after hours, he says. But when "I wasn't in my cube, people would stop by" and think, "he's not here?" He was soon laid off, largely because he wasn't in the office enough, he was told.
Although Greg Long, a Mount Vernon, Mich., single father, had a good track record as an advertising and sales executive, he says he has been pressured to quit two managerial jobs since his daughter was diagnosed 10 years ago with Rett syndrome, a neurological disorder. He tried to make things work; if his daughter had a 10 a.m. hospital appointment, "I'd be working until 10 at night to make up for it," he says. But at one company, his boss complained he felt "like I'm running a social-services organization." In the second, a fellow executive demoted him, saying, "You've got to deal with your kid." Such incidents suggest a need for working caregivers to nail down job objectives with employers in clear, measurable terms.
In the past courts have shied away from dealing with workaday issues such as employee scheduling, but a 2005 ruling suggests that even revoking a parent's flexible schedule can be illegal under some circumstances, such as when he or she is caring for a child with special needs. Chrissie Washington, a secretary for the Illinois Department of Revenue, had been working a 7 a.m.-to-3 p.m. schedule so she could get home to care for her son, who has Down syndrome. But after she filed formal charges of race discrimination against her employer, she was ordered to work 9-to-5.
Ms. Washington claimed in a lawsuit that withdrawing her flexible schedule constituted illegal retaliation for filing the racism charges. A federal district court in Springfield, Ill., ruled in the department's favor in 2003. But a federal appeals court in Chicago last August overturned that ruling, holding that Ms. Washington's special vulnerability -- her son's medical condition -- meant that revoking her flexible schedule was "a materially adverse change for her." A department spokesman says, "We did not and do not discriminate or retaliate" against employees, and predicts the department will prevail in the suit.
First Published July 6, 2006 12:00 am