It’s hard enough to run a business with a full staff, let alone when employees are off work. So when a father takes time off to care for his young children you may have to pass him over for a promotion, right? That can’t possibly be discrimination in the workplace. After all, you have a business to run. Or what about a mother who is frequently off work to care for her disabled child? Surely she can’t handle more responsibility, can she?
This is the kind of thinking that gets employers into trouble, sparking charges of Family Responsibilities Discrimination, also known as FRD. It’s not a new form of discrimination, but it’s becoming more and more common. There were 400 per cent more cases in the past decade than in the previous one.
History of FRD
“I have seen cases going back to the 1940s, where women were terminated for being pregnant and then denied unemployment benefits. But FRD didn’t really start to grow until the late 1990s, and it is still growing today,” says employment lawyer Cynthia Calvert, founder and principal of Workforce 21C, and a nationally-recognized expert in Family Responsibilities Discrimination law.
“There are more than 3000 FRD court cases in the database I maintain for the Center for WorkLife Law at UC Hastings College of the Law. These cases represent just the tip of the iceberg, however. We know from EEOC charge statistics, reports of informally-resolved complaints, and stories from lawyers and employees that many more FRD claims never reach the courts.”
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The name “family responsibilities discrimination” came into use in 2005 to describe cases involving discrimination against employees who have family caregiving responsibilities, explains Calvert. “Prior to that time, law professor Joan Williams had identified the pattern of discrimination against family caregivers, and she and I had begun researching the legal cases the caregivers brought against their employees. We saw several legal and sociological trends that led us to identify the syndrome and to coin the term. We presented our research to the EEOC, and the EEOC conducted further research and held hearings about discrimination against caregivers, leading to its 2007 Enforcement Guidance and its 2009 Best Practices for employers document,” says Calvert.
Odds are Against Employers
“FRD is a legitimate claim, and employees prevail more frequently in FRD cases than in other types of employment cases,” says Calvert.
Some jurisdictions have statutes that expressly ban FRD, she explains. In jurisdictions that do not, including federal employment law, FRD claims are usually brought as sex discrimination claims or leave claims, although there are other statutes and common law causes of action that can be used as well.
“What makes all these disparate claims ‘FRD claims’ is their common factual nexus: the cases all involve assumptions about how caregivers will or should act in the workplace, and negative personnel actions taken based on those assumptions,” says Calvert. “For example, a supervisor may assume that a mother will be more committed to her family than her job, even if there is nothing in her performance to suggest that, and will deny her a promotion.”
By recognizing the assumptions underlying the claims and grouping them together, employers can try to understand why this discrimination occurs and address it effectively.
“The courts generally recognize the assumptions that give rise to the claims, and a body of law has developed that holds that negative personnel actions based on sex-based assumptions and stereotypes is illegal sex discrimination,” says Calvert. “The Supreme Court has issued several opinions recognizing sex-stereotyped assumptions and stereotypes as illegal discrimination, and most of the federal circuit courts of appeal have as well.”
Given the risks, employers would be wise to take steps to ensure they do not discriminate.
Calvert recommends the following six actions:
- Train supervisors on what assumptions about caregivers commonly arise in the workplace, the negative effects those assumptions can have on the company’s business, and alternative responses in situations that typically trigger the assumptions
- Review company policies, both as written and as practiced, to make sure they do not adversely impact caregivers. Hiring, leave, promotion, and compensation are examples of policies that should be inspected.
- Consider adding to the company’s EEO policy a statement that the company will not discriminate based on family responsibilities. This is particularly necessary if the company operates in a jurisdiction that expressly prohibits FRD
- Train HR personnel on how to investigate and respond to FRD claims
- Look at key indicators within the company for evidence of FRD, such as the promotion rates of mothers and non-mothers
- Encourage a culture at the company that supports family caregiving – after all, almost every employee at some point in his or her career will need to care for an aging parent, a sick spouse/partner, or a child
By following Calvert’s six steps, not only will you reduce the risk of lawsuits from discrimination claims, but you will also foster a positive and caring atmosphere that will benefit the company in many other ways.