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Unfair treatment of workers with family responsibilities can lead to costly lawsuits and a disgruntled workforce.

Saturday, October 2, 2010
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At many offices, the sight of a co-worker's baby daughter brings an air of excitement -- some poke their heads out from behind cubicle walls while others rush over to ogle, offering candy or doohickeys from their desk drawers to entertain the child.

But when Dawn Gallina brought her 10-month-old daughter, Lilly, to work in 1999, the response was quite different, she says. A lawyer at Mintz Levin in Reston, Va., at the time, Gallina says Lilly's impromptu visit led to months and months of bad treatment by her managers, who did not previously know she was a mom.

Her supervisor told her that men and women have different commitment levels at work and that it was hard for female lawyers to find work/life balance, according to court documents. (Gallina later sued.)

A different manager informed Gallina that she wasn't "as committed" as the other attorneys at the firm and that she had to decide whether to be a "successful mommy or successful lawyer," the documents say.

What's more, he embarrassed her in front of her colleagues, using crude swear words when addressing or referring to her, says Gallina.

"He took it above and beyond anything that was reasonable," she says. " 'Pregnant women don't make partner.' He said that to me!"

She filed a formal complaint with the company.

Gallina says she started getting bad performance reviews (even though she says she was never warned about poor performance and the same people had made glowing remarks about her the year before.) That led to her losing out on a pay increase.

The final straw, she says, came when Lilly had to go to the hospital for emergency testing for childhood arthritis and certain types of cancer (the tests were negative and Lilly was healthy). Gallina took a few days off, but still brought work home with her.

Then she received a phone call -- she was fired.

Gallina sued for compensatory damages, back pay, front pay, punitive damages and reinstatement, according to court documents. A jury in the United States District Court for the Eastern District of Virginia awarded her $190,000 in compensatory damages and $330,000 in back pay. The case was later appealed and Mintz Levin settled for an undisclosed sum of money.

In a statement, Michael Gardener, a partner at Mintz Levin, says it's "firmly committed to providing a workplace that offers equal opportunity and fair treatment for all employees. In addition," he says, "the firm has long provided for the needs of those who serve as caregivers. There was no finding of discrimination in the Gallina case. The matter has been settled and the terms of the settlement are confidential, as are all matters concerning Mintz Levin employees."

The company's alleged treatment of Gallina is all too common in today's workplace, legal experts say. Increasingly, employment lawyers and workplace experts are referring to it as family-responsibility discrimination (or caregiver discrimination), meaning that a worker receives poor treatment from his or her employer based on family caregiving responsibilities -- including caring for children and elderly parents.

A pregnant woman, for example, is fired before going on maternity leave because the company doesn't want to lose productivity. A man who cares for an elderly parent is passed up for a promotion because the company doesn't think he'll be able to handle the heavy workload. A mother with small children isn't hired because the hiring manager thinks she won't be able to work long hours or be fully committed to the job.

The Center for WorkLife Law in San Francisco (part of the University of California Hastings College of the Law) finds, in its Family Responsibilities Discrimination: Litigation Update 2010 study, that lawsuits by caregivers have increased 400 percent over the last 10 years. And it's costing companies plenty of money. Employees prevail in almost half of those cases, it says, receiving an average cash award of more than $500,000.

The study also finds that the majority of family responsibility discrimination cases revolve around pregnancy and maternity leave (67 percent). Other cases are related to elder care (10 percent), caring for sick children (7 percent), caring for a sick spouse (4 percent), time off for fathers of newborns or newly adopted children (3 percent) and caring for family members with disabilities (2 percent.)

Considering the numbers and the costs, HR would be wise to ensure managers don't discriminate against caregivers (something they might do unknowingly), and that they help create a family-friendly culture and see to it employees know how to report such incidents.

Where It All Began

By many accounts, family responsibility discrimination first hit the court system in 1971 when the Supreme Court ruled, in Phillips vs. Martin Marietta Corp., that it was unlawful for the Raleigh, N.C.-based construction-aggregates provider to refuse to accept job applications from mothers with preschool-aged children while employing men with children of the same age.

More recently, this form of discrimination has gained a lot of traction in the court system. Here are a few examples:

* In 2006, Agilent Technologies Inc. was ordered to pay $5.2 million for firing a woman who was out on maternity leave.

* In 2007, a former Kohl's employee with children was awarded $2.1 million after the company repeatedly passed her over for a promotion because she had children, while instead promoting less experienced workers without kids.

* In 2009, a circuit court ruled that Pfizer Inc. mistreated and then terminated an employee who took FMLA leave to adopt a child from Russia. The court awarded him more than $666,000.

The U.S. Equal Employment Opportunity Commission has also taken on the issue, citing family responsibility discrimination as an emerging trend in the workplace in 2007, stating that it can lead to the disparate treatment of workers.

In 2009, the agency followed up with guidelines for employers, including educating managers about the possible legal implications of working with caregivers; identifying and removing barriers that block a person from easy re-entry into the workforce after taking extended time off (such as during a maternity leave); creating a strong equal opportunity policy; and examining performance reviews and hiring processes to ensure there is not a pattern of disparate treatment toward caregivers.

Despite those rulings and the EEOC regulations, there is "no city, state or federal law that says that you cannot discriminate against caregivers," says Joshua Zuckerberg, a labor-and-employment attorney with Pryor Cashman in New York.

Yet, by discriminating against a caregiver, companies end up breaking other equal-opportunity laws.

In Dawn Gallina's case, for example, Mintz Levin's actions led to an unlawful retaliatory firing, according to the District Court ruling.

Mistreatment of caregivers can also fall into cases of gender-discrimination. For example, thinking that a woman who has just had a child won't be as committed or productive after she returns would be considered a discriminatory presumption.

"[Thinking that] 'Maybe they won't be taking the business trip or they won't put in the extra hours' . . . is an unfair and discriminatory presumption," says Zuckerberg. "It is a presumption that is generally not made about men."

The best way to stay on the right side of the law is for companies to make sure personnel decisions are about the work -- not the employee's family situation, says Zuckerberg.

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"Any decision [should be documented to make sure] it's objective [and] not based on subjective feelings or stereotypes or presumptions," he says.

Managing the Managers

Allison Grace, president and founder of Charlotte, N.C.-based consultancy Instant HR Solutions, says the best way to avoid caregiver discrimination is by creating a family-friendly culture, complete with a formal policy in which leadership "respects that people have a life outside of work."

"Be the kind of place where you don't reward people based on how many hours you work," says Grace. "Reward people based on results."

Grace recalls the story of a company in which a female senior-level leader had to work soon after having a baby.

"She was on her BlackBerry in the hospital bed two hours after giving birth!" says Grace. "It was that kind of culture. 'That's great you're having a baby, but you've got to get back to work!' "

A formal policy should contain examples of good and bad conduct, make it clear that retaliation against caregiving employees is prohibited and then spell out to employees how to make a formal complaint.

Though many companies still handle issues of family responsibility discrimination on a case-by-case basis, Grace says, having a policy allows for a dependable way to handle those situations.

"Comes down to consistency," says Grace. "If you are handling it on a case-by-case basis, that can lead to inconsistency ... and open [the company] up to legal issues."

But even a change in culture and formal policy could be for naught if managers aren't getting the picture.

"A lot of managers are not aware of the legal landmines they can step on," she says. "They need to be aware that it's not OK to ask a female [job] candidate if they plan on having children. It's not OK to ask in an interview, 'If you have to travel, who will take care of your kids?' -- and only ask that of women."

Cynthia Thomas Calvert, deputy director and general counsel at the Center for WorkLife Law, says managers should be trained in the best ways to respond to an employee announcing a new family situation. If an employee says she's pregnant, for example, a manager might wonder how much work that employee will miss for maternity leave.

"That isn't productive for a company," says Calvert, whose organization runs a hotline for workers who believe they are facing family responsibility discrimination. "If you treat your pregnant employees just like everyone else, they are much more likely to come back to the company after they have their baby."

In some cases, says Calvert, a company may have anti-discrimination policies in place, but the managers might still take it upon themselves to discriminate -- perhaps because they either don't know that they have bias or they think it's good business.

"It happens in companies known for being family friendly and on the ball," she says.

Calvert also suggests that managers should run personnel changes by HR, who can help them see if there is an inherent bias coming into play.

Another solution is to offer flexible work schedules, which allow mothers, fathers and caretakers to adjust their work days to accommodate family issues. Sure, that can be helpful for the worker, but it won't stop a manager from being discriminatory.

That responsibility is, hopefully, handled by HR.

"If you have supervisors who are discriminating, [a flex-time] program isn't going to save you," says Calvert.

Gallina, who successfully sued her employer for discrimination based on her being a mother, says that -- although there's been progress since her case was decided on several years ago -- family responsibility discrimination needs to get a lot more attention.

"HR really needs to be in touch with ... managers about how serious something like this is," says Gallina. "They're really good about training for sexual harassment ... but they never talk about parental rights."

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