A New Twist on Old Law

This article accompanies Un-Family Friendly.

Saturday, October 2, 2010
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As employers continue to struggle with issues involving work-life balance, employees with caregiving responsibilities -- both male and female alike -- are increasingly asserting family-responsibility-discrimination claims when they are denied job opportunities and other benefits because of their responsibilities at home.

In a 2009 study, the Center for WorkLife Law at the University of California Hastings College of Law reported a 400-percent increase in FRD claims within the last decade. This number is significant in light of the 23-percent decline in general employment-discrimination cases between 2000 and 2005.

Even more concerning is that employee-plaintiffs are estimated to prevail in FRD cases more than 50 percent of the time, obtaining multimillion dollar verdicts in some cases.

Why the dramatic increase?

Statistics from the U.S. Department of Labor show that 60 percent of women are working or looking for work and women make up 46 percent of the workforce. Women now account for approximately half of all managerial, professional and related positions in the workforce.

The rise has been most dramatic for mothers of young children, who are almost twice as likely to be employed today as were their counterparts 30 years ago. As a direct result, men's roles in family caregiving have also increased.

According to DOL statistics, between 1965 and 2003, the amount of time men spent providing childcare has nearly tripled. And, remember, family caregiving responsibility not only involves care for small children, but also for elderly or disabled parents, spouses and other relatives.

In April 2007, the U.S. Equal Employment Opportunity Commission formally weighed in on this matter, issuing an enforcement guidance entitled "Disparate Treatment of Workers with Caregiving Responsibilities."

The EEOC's guidance reaffirmed what most employers already knew: Employers cannot stereotype employees based on preconceived notions regarding how employees' caregiving responsibilities will affect them at work.

In May 2009, the EEOC followed with a memorandum entitled, "Employer Best Practices for Workers with Caregiving Responsibilities," to aid employers in "reduc[ing] the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity."

What Is FRD or Caregiver Discrimination?

Contrary to popular belief, having family responsibilities is not, in and of itself, a protected characteristic under federal antidiscrimination laws (although Alaska and the District of Columbia, for example, have enacted laws creating such a protected class).

Rather, FRD claims most often arise under Title VII of the Civil Rights Act of 1964, which prohibits employers from "fail[ing] or refus[ing] to hire an individual or to otherwise discriminate against an individual with respect to terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a).

Sex-based stereotypes about working mothers and false perceptions of the masculinity of men as caregivers, no matter how well-intentioned or benevolent, frequently serve as the basis for FRD claims, e.g., "Jane needs a part-time position more than Jim does; he has a wife who can take care of the kids."

Similarly, employment decisions based on stereotypical notions about pregnant women, or women who may become pregnant, violate the Pregnancy Discrimination Act, and, in most cases, also constitute typical sex discrimination: "Jane won't be interested in a position requiring weekly travel -- she's four months' pregnant. Let's give the job to John; he doesn't have a family, so he will be able to give the job his full effort."

Sex-based discrimination aside, the Americans with Disabilities Act's "association clause" also frequently serves as the basis for FRD claims.

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The ADA prohibits employers from " ... excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. § 1211(b)(4).

Assumptions about an employee's dedication to his/her job because of the need to care for a disabled relative will violate the ADA, e.g., "Jane can't handle the account-executive position. How can she handle the long hours and take care of her disabled mother?"

Other federal and state leave statutes, such as the federal Family and Medical Leave Act, in addition to Employee Retirement Income Security Act and the Equal Pay Act, also frequently involve claims of employees as caregivers.

What Should Employers Do? 

There are a variety of things employers can do to ensure compliance with federal and state laws, thereby avoiding FRD claims. Like FRD claims themselves, these suggestions are not new or particularly novel.

However, given the spike in FRD claims, employers should revisit policies, procedures and benefit programs to ensure equal application and employee access. In addition:

* Train supervisors and managers on FRD matters, including legal protections and prohibited conduct.

* Encourage supervisors and managers to consult with human resources when confronted with FRD issues throughout the employment relationship, from hiring to termination.

* Review and update employment policies to ensure compliance with applicable FRD laws, including time-and-attendance policies, nondiscrimination policies, anti-harassment policies, alternative work schedules and benefits plans and programs.

* Properly document all legitimate business reasons for employment decisions.

* Ensure that there is an effective complaint mechanism in place for investigating and responding to allegations of inappropriate comments and conduct.

Allison L. Feldstein is a member in the Employment and Labor Law Group at Eckert Seamans Cherin & Mellott, LLC, based in Pittsburgh. She can be reached at 412.566.2182 or

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