Originally Published in The HR Specialist  -  August 2013.

Many workers, both male and female, juggle work and caregiving responsibilities. This can include providing care for young children and elderly family members, as well as providing care to disabled children, parents or spouses. While family responsibility discrimination (FRD) is not a new protected category and there is no federal law expressly preventing employment discrimination against caregivers, a number of laws can provide protection for employees with caregiving responsibilities. Employers must be aware of these protections and develop best practices to avoid discrimination claims.

For example, many workers are guaranteed leave under the Family and Medical Leave Act (FMLA) to care for a newborn or newly adopted child, or to care for a child, spouse or parent with a serious health condition. Employers must provide job protection for employees taking FMLA leave and cannot retaliate against employees for exercising their FMLA rights. Yet, the FMLA has its limitations. Private employers are covered by the FMLA only if they employ 50 or more employees, and employees are eligible for leave under the FMLA only if they have been employed for at least 12 months and have worked at least 1,250 hours in the last year.

Given the limitations of the FMLA, employees who feel that they are not being treated fairly by employers based upon their caregiving responsibilities more and more are turning to discrimination laws. The Americans with Disabilities Act (ADA) prohibits discrimination against an individual, whether or not that individual has a disability, because of his or her relationship with a disabled person. Under this “association provision” of the ADA, an employer cannot take an adverse employment action based upon “unfounded concerns about the known disability of a family member or anyone else with whom the applicant or employee has a relationship or association.”¹ Similarly, Title VII of the Civil Rights Act of 1964 (Title VII) disallows discrimination based on gender stereotyping. The EEOC has issued an extensive Guidance on FRD,² which addresses the potential for discrimination against working parents and others with caregiving responsibilities. The Guidance signifies the EEOC’s heightened sensitivity to discrimination against employees with caregiving responsibilities.

While the number of reported cases in the FRD context are few, more and more cases are being filed. Indeed, by one count, there was a 400 percent increase in FRD claims filed between 1999 and 2008, as compared with the previous decade.³ For example, in Lust v. Sealy, Inc.,⁴ a sales manager sued her employer, alleging failure to promote based on FRD. The plaintiff’s supervisor admitted that, although the plaintiff was qualified, he did not consider her for the promotion in question because she had children and he assumed that she did not want to relocate her family. When the plaintiff asked why she had not been promoted, the supervisor allegedly stated, “because you have kids.” A jury awarded the employee over a million dollars in damages, although this amount later was reduced by the court.

In a more recent case, Ayanna v. Dechert, LLP,⁵ the plaintiff, a male attorney, was terminated four months after using paid paternity leave and FMLA time to care for his children and mentally ill wife after his second child was born. In his complaint, the plaintiff alleged that “the culture for men at Dechert is a ‘macho’ one which praises and encourages male associates and partners to fulfill the stereotypical male role of ceding family responsibilities to women.” In denying summary judgment to the employer law firm – which decision would have paved the way for the case to proceed to a jury trial – the court noted that plaintiff was told that he was fired because of a “fair” rating and “personal issues,” which, the court stated, could reasonably be found to be a reference to the plaintiff’s recent need to take FMLA leave. Not surprisingly, the case settled just prior to trial for an undisclosed amount.

While employers do not need to give special preferences for those with family responsibilities, they do need to be aware of potential problems, most likely from an unenlightened supervisor. The EEOC “strongly encourages” employers to adopt best practices to make it easier for all workers, whether male or female, to balance work and personal responsibilities.⁶ Companies that follow these practices will be well-prepared to meet the growing FRD challenges:

• train supervisors regarding issues such as gender stereotyping, discrimination, harassment and retaliation as they relate to employees with caregiving responsibilities
• make sure that managers are aware not only of leave provisions under the FMLA but also of state or local leave provisions pertaining to employees providing care to children or other family members
• make sure that all employment decisions – including those affecting caregivers – are founded on solid business reasons and not on stereotypical assumptions, and
• institute an effective mechanism for receiving and investigating all complaints, including FRD complaints.

Policies aimed at preventing family responsibility discrimination also will enable companies to retain talented and experienced employees who happen to be caregivers.

Endnotes

1 http://www.eeoc.gov/facts/association_ada.html.

2 http://www.eeoc.gov/policy/docs/caregiving.html.

3 http://www1.eeoc.gov/eeoc/meetings/2-15-12/lichtman.cfm?renderforprint=1#fn26.

4 383 F.3d 580 (7th Cir. 2004).

5 2012 U.S. Dist. LEXIS 149128 (D. Mass. Oct. 17, 2012).

6 http://www.eeoc.gov/policy/docs/caregiving.html.