Authoritative Summary of Law on Family Responsibilities Discrimination
We’ve written before about the increased interest in what is being called “Family Responsibilities Discrimination”:
- Family Responsibilities Discrimination?
- EEOC Issues Guidance on Family Responsibilities Discrimination
- Mommified: Social Science Evidence of Discrimination Against Mothers
Legally speaking, family responsibility discrimination does not involve a new form of prohibited discrimination in the workplace, but rather a set of scenarios that are increasingly leading to employment discrimination lawsuits and other legal claims.
This topic garnered significant interest in terms of search engine traffic. So when I saw an excellent and very thorough article on the subject in The Labor Lawyer, a scholarly journal published by the American Bar Association’s Labor and Employment Law Section, I jumped on the opportunity to invite the authors to guest-post a summary.
They have obliged, producing the following summary, by Consuela A. Pinto, Senior Counsel for the Center for WorkLife Law of the University of California’s Hastings College of the Law.
Introduction
Family Responsibilities Discrimination (FRD) is the hot button issue in employment law. FRD is not a new cause of action; employees have been claiming discrimination based on their caregiving responsibilities since the 1970’s.
Why the sudden spike in FRD claims? Researchers with the Center for WorkLife Law attribute the increase to a number of factors:
- The passage of the 1991 Civil Rights Act expanded damages and allowed jury trials.
- Young women increasingly expect that they can have both a career and a family and young men have a related expectation that they should be actively involved in family life.
- Increased awareness by employees of their rights, driven in part by the availability of information on the Internet.
- Finally, the proliferation of FRD claims may be due, in part, to the fact that FRD cuts across all political ideologies. Conservatives and liberals alike see employment discrimination based on family responsibilities and caregiving as a threat to family values.
Family responsibility discrimination cases encompass a wide range of employment claims, from Title VII gender discrimination to interference with ERISA-protected benefits, to breach of contract. Nonetheless, all FRD cases share a common element. In every FRD case, the employee alleges that his or her caregiving responsibilities triggered the alleged adverse action that is at issue in the case.
Among the most common FRD claims are causes of action for failure to hire, failure to promote, denial of benefits, denial of or interference with FMLA rights, retaliation for exercising FMLA rights, hostile work environment, retaliation, and wrongful termination.
The most commonly used federal statutory basis for protecting family caregivers in the workplace is Title VII and the Pregnancy Discrimination Act. However, plaintiffs’ attorneys have found creative and effective ways to prove FRD claims using the FMLA, ADA, ERISA, and a variety of common law actions.
Title VII
Title VII disparate treatment claims are by far the most common type of FRD action. These typically involve claims individuals were treated adversely because of gender.
Few FRD plaintiffs pursue direct or mixed motive claims. Rather, the vast majority of FRD cases follow the traditional McDonnell-Douglas model of proof by circumstantial evidence of unlawful motive.
FRD disparate treatment claims differ from traditional Title VII gender cases because of a recognition by the courts that action based on stereotypes about mothers in the workplace may be gender discrimination, and the elimination of the requirement that plaintiffs in stereotyping cases must put forth comparator evidence (evidence of more favorably treated, similarly situated male employees).
These developments generally work in the plaintiff’s favor, and are one factor that contributes to the 50% success rate of FRD cases.
Pregnancy Discrimination
Pregnancy discrimination complaints, which have risen sharply over the past decade, are a significant subset of FRD cases.
The typical pregnancy discrimination FRD case arises when an employer takes adverse action against a pregnant employee “because it anticipate[s] that she would be unable to fulfill its job expectations.” Wagner v. Dillard Dep’t Stores, 17 Fed. Appx. 141, 149 (4th Cir. 2001).
A less obvious FRD PDA case is one where the employer takes adverse action against an employee because she may become pregnant. Int’l Union v. Johnson Controls, Inc., 499 U.S. 187, 206 (1991); Kuest v. Regent Assisted Living, Inc., 43 P.3d 23 (Wash. App. 2002).
Adverse Action
As a result of the Supreme Court’s definition of “adverse action” in Burlington Northern v. White, actions such as transferring an employee to an office with a longer commute, placing an employee on a rotating schedule, or terminating an employee’s telecommuting arrangement may be held to be materially adverse actions in cases where the employees are caregivers.
This means that there need not be a more obviously adverse action such as refusal to hire, demotion, or termination — there may be a valid claim if the employer takes such a less severe action and it is shown to be unlawfully motivated.
Policies to Check
Some policies that may be unlawful, even if there is no discriminatory intent and the policy is applied in a gender-neutral manner. These may include:
- Rules that workers cannot use sick days to care for sick family members. See, e.g., Roberts v. U.S. Postmaster Gen., 947 F.Supp. 282, 289 (E.D. Tex. 1996).
- Restrictions on leave or absences within a certain period of time. See, e.g., EEOC v. Warshawsky & Co., 768 F. Supp. 647, 654 (N.D. Ill. 1991); Abraham v. Graphic Arts Int’l Union, 660 F.2d 811, 819 (D.C. Cir. 1981).
- Compensation structures that reward (or penalize) employees based on the number of hours they work rather than productivity or performance during working hours.
The problem is that such policies can have a disparate impact by gender on working caregivers. In other words, such policies may hurt women much more than men. If so, and if the employer cannot adequately justify them as necessary to the operation of the business, they may be found unlawful.
Family and Medical Leave Act (FMLA)
Family responsibilities discrimination Family and Medical Leave Act cases arise because an employee gives birth or is the caregiver for an ill family member.
Employees have been successful in bringing FRD cases under both types of FMLA claims: interference with FMLA rights and retaliation for exercising FMLA rights.
Elder care cases are stretching FRD and FMLA protections to new limits. Elder care and its implications for the workplace is an issue to watch.
Americans With Disabilities Act (ADA)
Plaintiffs have been successful in bringing ADA claims where they have proven that they were discriminated against because they care for a person with a disability. This protection stems from the “association clause” of the ADA.
A major hurdle in utilizing the ADA is that the family member or friend needing care must be an individual with a “disability” as defined by the ADA, or must be regarded by the employer as being disabled.
Employee Retirement Income Security Act (ERISA)
ERISA has been used by caregivers in three types of situations:
- To challenge refusals to hire or terminations based on employers’ fears of high health insurance premiums where employees’ dependants have serious medical conditions. Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011 (8th Cir. 2004); Fleming v. Ayers & Assoc., 948 F.2d 993 (6th Cir. 1991).
- To obtain pension credits denied them due to personnel policies that required them to stop working if they became pregnant. Maki v. Allete, Inc., 383 F.3d 740 (8th Cir. 2004).
- To obtain relief from an employer’s decision to terminate a pregnant employee in order to prevent her from using maternity leave benefits. Grew v. Kmart, 2006 U.S. Dist. LEXIS 6994 (N.D. Ill. 2006).
State Law (Statutory and Common Law)
State statutes and common law theories are also potential bases for FRD claims.
The District of Columbia and Alaska provide the strongest statutory protection for FRD plaintiffs because they have statutes that expressly prohibit discrimination based on an employee’s parental status or family responsibilities.
State anti-discrimination and leave laws have also proven to be fruitful grounds for FRD claims.
FRD claims have also been based on common law theories such as:
- Wrongful discharge.
- Intentional infliction of emotional distress.
- Implied covenant of good faith and fair dealing.
- Tortious interference with contract.
- Breach of contract.
Stereotyping
Stereotypes of caregivers underlie all family responsibilities claims. This fact sets FRD cases apart from many other employment claims.
The discrimination arises because the employer’s actions are based not on the individual employee’s performance or desires, but rather on stereotypes –- assumptions of how employees with caregiving responsibilities will or should behave.
For example, a supervisor may assume that a woman with children will be less committed to her job, or that a man who has to take care of his dying mother will be frequently absent from work –- wholly apart from any evidence of the truth of such a stereotyped assumption in a particular situation.
Smoking Gun Remarks
Many plaintiffs are successful in FRD cases because they have the “smoking gun” — a manager with loose lips who has made statements relating to the characteristics of caregivers, particularly mothers, in the workplace.
Examples of loose lips comments from actual cases include:
- “You better not get pregnant again.”
- “Working mothers cannot be both good workers and good mothers.”
“[S]tereotypical remarks about the incompatibility of motherhood and employment ‘can certainly be evidence that gender played a part’ in an employment decision….As a result, stereotyping of women as caregivers can by itself and without more be evidence of an impermissible, sex-based motive.” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004).
Conclusions and Suggestions
The numerous variations in FRD claims make these cases particularly challenging to prove as well as defend.
Employers and their attorneys need to have effective prevention programs in place.
Training of managers about stereotypes of caregivers and how they lead to FRD claims is essential, as shown by the loose lips statements.
In addition, prevention should include a review all relevant employment policies and actions for possible FRD liability.
Adding “family responsibilities discrimination” to existing anti-discrimination policies and incorporating information about it into company training in a manner similar to the anti-harassment programs implemented by most employers in response to the Supreme Court’s decisions in Faragher and Ellerth may help employers avoid punitive damages.
Lessons from the case law help plaintiff’s attorneys as well. Adding FRD fact patterns to their case screenings can help them identify potential FRD cases that otherwise might be missed.
Premature losses can be avoided by making sure that the right causes of action are used (for example, if the child of a woman who alleges discrimination is two years old, the PDA is most likely not the right statutory vehicle).
Finally, being prepared to educate EEOC investigators, judges, and juries about what FRD is and how it plays out in the workplace can help strengthen your case, but experienced FRD lawyers are split on whether expert testimony is needed at trial.
Plaintiffs’ attorneys, employers, and their attorneys should all familiarize themselves with the recent EEOC Guidance on FRD. Examples of common scenarios for discrimination are provided throughout.
