As Covid-19 cripples the institutional supports – daycares, schools, summer camps, and community centers – that families rely on, parents struggle to fulfill both the demands of their jobs and caring for their children and families. While this struggle is exaggerated by the pandemic, it is not new. The clash between work and care, especially for women, existed long before Covid-19 shuttered daycares and classrooms. Indeed, reports of employment discrimination against caregivers were climbing in the decade before the pandemic and now show signs of an even steeper ascent.
The notion of the “ideal” worker – the (fictional) worker who can commit themselves fully to work, unfettered by family obligations – can lead employers to give preference to workers without caregiving responsibilities. Employers may hire, promote, and reward workers based on their real or presumed caregiving duties, or lack of them. Though discrimination against caregivers is damaging for all workers, women are hit especially hard as they still shoulder the lion’s share of caregiving in two-parent heterosexual households.
In our new study published in Gender & Society, Christina Treleaven, Sylvia Fuller, and I show how work and caregiving clash through an analysis of caregiver discrimination claims, brought mostly by parents, to Canadian Human Rights Tribunal. In Canada, discrimination against workers because of their family responsibilities is unlawful. Workers can bring formal legal claims to Human Rights Tribunals, which are quasi-judicial bodies that hear cases and make legally binding decisions.
We analyzed case documents and tribunal decisions of all 164 caregiver discrimination cases resolved by Human Rights Tribunals between 1985 and 2016. We examined how gender affects who is seen as an “ideal” worker, who is assumed to be responsible for caregiving, and who is deemed deserving of workplace accommodations.
We found gender differences in both the types of claims workers bring and how these claims are evaluated by tribunals. Women filed more claims (73%) as compared with men (27%). This is unsurprising given women’s disproportionately large care burden.
We also uncovered gender differences in the type of discrimination alleged. We identified two forms of caregiver bias. The first is when employers make decisions about hiring, firing, pay, promotion, scheduling, or other issues based on assumptions or stereotypes about how workers with caregiving duties will behave or perform on the job. For instance, research shows that employers assume mothers are less competent, less committed, and less reliable than non-mothers as they divide their attention between work and care. The second type of discrimination is where employers discriminate against caregivers based on their actual caregiving responsibilities and the need to accommodate them. Employers may deny requests for flexibility or family-compatible accommodations or retaliate against workers who use them.
We found that claims over accommodations for care were split relatively equally, 61% for women and 39% for men. But cases involving discrimination based on stereotypes of the “unreliable, uncommitted, or incompetent” worker were almost exclusively brought by women (94%). Thus, women caregivers are doubly disadvantaged – first in needing accommodations for actual care duties and second in being stereotyped as bad employees. Women were three times as likely as men to have their cases dismissed due to lack of what the tribunal considered “reliable” testimony and evidence.
In terms of case outcomes, women more frequently received favorable outcomes (54 %) than men (42%). On the one hand, this is encouraging, as it shows that tribunals recognize the unique difficulties women face in balancing work and care.
But on the other hand, it shows that men struggle to assert their legal rights as caregivers. Men’s cases were dismissed twice as often as women’s for failing to meet the legal standard for discrimination. This happened when men, mostly fathers, failed to cite their kids as the reason for requesting accommodations. And when men did name their children as why they needed accommodations, tribunals assumed that someone else (usually mom) should be available to care for the kids so dad could work. This is consistent with research as male caregivers are often reluctant to use family policies and instead choose to “care in secret,” quietly tending to children without outing themselves as caregivers.
Bias against caregivers affects women and men, however there are gender differences in how workers experience discrimination and whether it is recognized under the law. Both women and men clash with employers when making accommodations to fulfill actual family obligations. But women caregivers also face stereotypes of being unreliable, uncommitted, and under-performing at work. In other words, women are stereotyped as a less than ideal worker by both employers and legal decision makers.
Men often do not openly cite their care obligations as the reason for requesting accommodations but doing so is critical for legal arguments of bias. Men need to be transparent about their responsibility for caregiving to show employers and the courts that they too are responsible for daily care duties and that mom is not the default “carer in chief.”
Now, more than ever, employers, policy makers, and legal bodies can not ignore the dire situation workers face in managing fulltime work and fulltime care – and the uneven toll it takes on women. Stronger legal protections for caregivers and entitlements to family-compatible policies are desperately needed for all workers, not just women or parents. This will ensure that workers can assert their legal rights to care, negotiate accommodations, and keep their jobs, both during the pandemic and beyond.
Elizabeth Hirsh is Associate Professor of Sociology and Canada Research Chair of Law and Inequality at the University of British Columbia. She studies employment discrimination, legal claims, and how law and policy can promote gender and racial equity at work.