Caring for a family member? New Illinois law gives workers protections from employer discrimination

A new state law barring employers from discriminating against people with caregiving responsibilities goes into effect Jan. 1.

The law gives Illinois the country’s strongest protections for people caring for children, aging parents and other family members, including those with disabilities, according to advocates.

"Workers should never face the discriminatory assumption that they won't be able to do a job just because they have a child, spouse or parent to care for at home,” state Rep. Will Guzzardi, D-Chicago, said in a statement. He sponsored the bill with former state Sen. Natalie Toro.

Illinois is the sixth state to enact such legislation, which Gov. JB Pritzker signed in August. The state’s 1.5 million family caregivers will be covered by its Human Rights Act, which prohibits workplace discrimination based on gender, race, religion, sexual orientation, ageism against people 40 and over and other protected classes.

People with family responsibilities can face bias at work that denies them equal opportunities, according to the Center for WorkLife Law at the University of California San Francisco.

Caregiver discrimination affects all employees, but women, people of color and low-wage workers are most severely affected, according to the center, which created a model used by Illinois and other states to draft policy.

Illinois’ law is the strongest in terms of the family relationships that are protected, said Liz Morris, co-director of the Center for WorkLife Law. It includes employees who care for a child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent or stepparent. Other states cover limited family relationships such as only children, she said.

Illinois' policy more realistically reflects modern family structures and caregiving beyond white affluent families, Morris said.

The law broadens coverage of caregivers as the U.S. population rapidly ages and pressures increase on the “sandwich generation” — adults taking care of parents 65 and older as well as children. In the U.S., there are about 48 million family caregivers, according to AARP. That number will likely swell: Baby boomers will be 65 and above by 2030.

“There is less attention being paid to caregivers for the elderly. It’s going to be a growing problem,” Morris said. She added that eldercare has a huge impact on the financial security of families.

Guzzardi said, “Companies are more familiar with the challenges of parenting. They may not have as clearly stated policies about caring for other family members, such as parents or spouses. Those caregiving responsibilities require just as much attention.”

Closing loopholes

Too many people have to choose between a job and caregiving. But Guzzardi said the new law lets them “take care of loved ones and participate in the economy."

Guzzardi initially learned family caregivers were excluded from the state’s anti-discrimination protections from Chicago attorney Gail Eisenberg, who chaired the legislative committee of the National Employment Lawyers Association of Illinois. She urged Guzzardi to introduce a bill to close the gap in the law.

“The new legislation will fill a loophole in existing legal protections that permitted discrimination based on unfounded assumptions about a caregiver's ability to perform their jobs,” Eisenberg said in a statement.

During a debate on the House floor earlier this year, Guzzardi gave examples of existing legal loopholes. For instance, a female employee with stellar work performance and four children applied for a promotion but was denied when her boss presumed she had too many family responsibilities.

“Had the employer given a job to a woman with no kids … that would have been perfectly legal. That kind of discrimination isn’t currently prohibited under the [state’s] Human Rights Act,” Guzzardi said at the time.

Opponents of the bill, such as state Rep. Dan Ugaste, R-Geneva, said existing anti-discrimination laws are sufficient and the new legislation would spark frivolous lawsuits.

However, a 2021 report from the Center for WorkLife Law found state legislation protecting family caregivers did not increase lawsuits. It hypothesized that when family caregivers are clearly labeled as a protected class, employers are less likely to discriminate against them.

Broadening protections

The law also broadens protection beyond pregnancy discrimination and covers caregivers with older children past infancy, said Laura Feldman, attorney with Prinz Law Firm in Chicago. In addition, there were no protections for male caregivers under existing law, she said.

But the new legislation isn't a silver bullet. It will be most effective “if employers take preventive measures and comply with state law,” Feldman said.

More than a decade ago, Feldman represented Shakera Newman, a nurse who sued her former employer, a rehab center in Bridgeview.

Newman said she was fired while in the hospital delivering her second child. Before that, her former employer had denied her days off to take care of her elder child who has disabilities. Newman believes the new state law could have helped her.

“A lot of parents who have special needs kids fear for their jobs because they can’t take off,” Newman said. “It would be great to be covered by law so there are no repercussions to take care of kids or loved ones.”

In 2014, Newman’s former employer settled the pregnancy discrimination lawsuit she filed with the U.S. Equal Employment Opportunity Commission.

Making sure employers know about the new protections will be a challenge, especially smaller companies without in-house lawyers, said Eisenberg.

“We want all employers to take steps to prevent discrimination, rather than learning of the law after receiving a charge of discrimination,” Eisenberg said.

She highlighted the EEOC’s existing guidance to improve workplaces for caregivers. Some of the federal agency’s best practices include training managers about their legal obligations and describing common stereotypes or biases about caregivers that may result in unlawful conduct.

But longer term, Eisenberg said adopting a paid family and medical leave insurance system is the best way for Illinois to support caregivers. Currently, the federal Family and Medical Leave Act protects someone’s job if they take leave and also bars retaliation. State laws mandate whether people are paid while on leave; Illinois and most states only offer unpaid medical leave.

“This robs both parties of potentially fleeting moments with a loved one [and] can force ill family members into nursing homes at great cost to the government,” Eisenberg said. “Too many employees cannot afford to take time off to care for their loved ones.”