Illegal caregiver discrimination occurs where an employment decision such as who gets a promotion is based on sex or another protected characteristic. This is true whether or not the employer discriminates more broadly against all members of the protected class. For example, sex discrimination against working mothers is prohibited even if the employer does not discriminate against childless women.

Here's another example from the EEOC:


Charmaine, a mother of two preschool-age children, files an EEOC charge alleging sex discrimination after she is rejected for an opening in her employer’s executive training program. The employer asserts that it rejected Charmaine because candidates who were selected had better performance appraisals or more managerial experience and because she is not “executive material.” The employer also contends that the fact that half of the selectees were women shows that her rejection could not have been because of sex. However, the investigation reveals that Charmaine had more managerial experience or better performance appraisals than several selectees and was better qualified than some selectees, including both men and women, as weighted pursuant to the employer’s written selection policy. In addition, while the employer selected both men and women for the program, the only selectees with preschool age children were men. Under the circumstances, the investigator determines that Charmaine was subjected to discrimination based on her sex.

Here's why this example shows discrimination: the better qualified applicant, Charmaine, a woman was passed over and the evidence indicates that the fact that she had young children (and might have to miss work to take care of them) appears to be a factor in the selection process. Neither federal nor Kentucky state law prohibits discrimination based solely on parental or other caregiver status, so an employer does not generally violate either if, for example, it treats working mothers and working fathers in a similar unfavorable (or favorable) manner as compared to childless workers.

Robert L. Abell, an employment discrimination lawyer in Lexington, Kentucky, represents individuals and families in employment law cases; contact him at 859-254-7076.