Family Responsibilities Discrimination - Summer 2010

Family Responsibilities Discrimination: The Unwritten Rule of Law

Many workers have double and sometimes triple duty - their job working for you and their job taking care of either a child or an ill spouse. As our population ages, more and more workers must spend additional time caring for their aging parents. Although there is no federal statute that expressly prohibits discrimination based on family responsibilities, creative plaintiffs’ attorneys are bringing more and more caregiver cases using a myriad of legal theories. A recent study published by The Center for WorkLife Law states that lawsuits filed by caregivers have increased by almost 400% over the past decade.¹ The EEOC has even seen the need to issue policy guidance entitled: “Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.”^² Considering these statistics and the EEOC’s attention to this type of litigation, all employers should be aware of their potential liability for such claims.

Family responsibilities cases are brought under such statutes as Title VII, the Family and Medical Leave Act and under state common law theories such as wrongful discharge and violation of public policy. For example,

A male employee is denied a promotion because he has young children in whose lives he is very active, which necessitates him taking more personal and vacation time than other men in his company. He is denied a promotion. The employee files a claim of sex discrimination under Title VII alleging that he has been treated differently than similarly situated female employees.
An employee is the caregiver for her mother who suffers from a serious health condition. Upon her return from a leave to care for her mother, she is transferred to a less desirable position. She files a claim of retaliation under the Family and Medical Leave Act.
An employee has a child with bipolar disorder. On occasion, the employee must take time off work to care for this child. The supervisor makes comments to the employee on a regular basis about the amount of time he takes off work and gives him a heavier workload upon his return to work. The employee files claims of retaliation and hostile work environment under the Americans with Disabilities Act.

In light of the increase in these types of claims, employers should keep the following points in mind:

Pay attention to changes in care giving responsibilities when periodically evaluating employees.
Ensure that supervisors are aware that men, as well as women, are protected against sex discrimination. Many employers tend to forget this fact and allow stereotypes regarding men’s and women’s roles to guide decision-making.
Do not take the role of the caring employer too far. In some instances, an employer may “altruistically” lighten the workload of a female employee with small children in an effort to “help” her, while not providing similarly situated men the same benefit. Absent an express request, such actions should not be taken.
Train employees responsible for interviewing and hiring on proper interviewing techniques and the “dos and don’ts” of interviewing.
Have an effective and accessible harassment complaint process and do not disregard complaints because they do not seem to fit into the “traditional” mode of claims. Train all employees to recognize and prevent harassment.

^{^[1]} Family Responsibilities Discrimination Litigation Update 2010 by Cynthia Thomas Calvert, The Center for WorkLife Law, http://www.worklifelaw.org/pubs/FRDupdate.pdf

^{^[2]}Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, http://www.eeoc.gov/policy/docs/caregiving.html

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