Family Responsibilities Discrimination Claims at the Forefront in 2008

In recent years, there has been a significant increase in cases involving "family responsibility discrimination" (FRD). According to a study performed by the University of California-Hastings Center for Work Life Law, the number of FRD cases increased by 400% from 1996 to 2005. FRD cases usually involve employees of both sexes, who allege that they were discriminated against by their employer because of their family caregiver responsibilities.

Most cases involve claims under Title VII, which does not protect family caregivers as a separate class, but prohibits discrimination based on gender. Out of the FRD cases has come a general prohibition against "sex plus" or quote "gender plus" discrimination which involves a policy or practice by which an employer classifies employees on the basis of sex plus another characteristic, such as motherhood or pregnancy. It is possible to support a claim based on discrimination against the sub-class of men or women, and not just the class of men or women as a whole.

However, FRD are not limited to employees with young children. Employees with family care giving responsibilities include: employees who take care of a family member such as a spouse, partner, minors, and adult children with physical or mental conditions. Employers need to be aware of the implications and issues surrounding employees with family care giving responsibilities, especially those issues involving Family and Medical Leave, promotion of employees with family care responsibilities and the application of policies, unmodified work schedules, flex time and telecommuting options.

Some of the more well known FRD cases involve comments and statements by employers reflecting the view that mothers do not belong in the workplace and that fathers do not belong in the role of family care giver.

FRD cases also arise when a policy that appears to be neutral on its face (such as limitations on leave, attendance policies, and promotion requirements) has a disparate impact when applied to employees with family care giving responsibilities. Other FRD cases have evolved out of employment decisions based on the assumption that employees with care giving responsibilities will have limited productivity or attendance problems, or will not be dedicated to the work because of the family obligations.

How can you as an employer reduce your risk of FRD claims?

You, the employer, should adopt a family responsibility antidiscrimination policy or add a prohibition against family responsibility discrimination to your current antidiscrimination policy. Ensure that all your policies are administered fairly and equally among both genders and both employees with family care giving responsibilities and employees without family care giving responsibilities. In other words, you as the employer should not terminate a pregnant employee for violating the no-call/no-show policies when others who are not pregnant were terminated for violating the same policy.

Implement training with all employees to review the prohibition against sexual harassment and discrimination, and to educate employees about the prohibited discrimination on the basis of family care giving responsibilities. Also, educate supervisors and managers about family responsibilities discrimination, and insist that all personnel decisions must be based on legitimate business needs and individual performance, not on stereotypes and biases. Even if you as the employer is acting in a manner in which you think is in the best interest for the employee, such as bypassing up a new mother or new father for a promotion because of the increased work demands.

For more guidance on the subject, you should consult the Equal Employment Opportunity Commission (EEOC) "Enforcement Guidance" which was published on FRD. The Enforcement Guidance is available at www.eeoc.gov.

For a review of your business' antidiscrimination/harassment policy contact the Employment Law Department of CGA Law Firm at 717.848.4900.

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