Publications
Article

Family Responsibilities Discrimination: Does It Really Exist?

Legal Intelligencer

Employees have always had to balance family and work responsibilities. However, with the rise in dual income households, the need for this balance is greater than ever. Today, one out of three American families with children under the age of 6 handle child care through "tag teaming," in which parents work opposite shifts, so that one can care for the children while the other is at work. Moreover, studies suggest one-in-four American families takes care of elderly relatives.

There has been an emerging focus on the legal issues related to the treatment of caregivers in the workplace with a significant increase of discrimination lawsuits on the basis of a person's caregiving responsibilities—often referred to as Family Responsibilities Discrimination. But what is FRD? Does such a cause of action exist? This article serves to answer these questions.

What Is FRD?

There is neither an independent cause of action for FRD nor is being a caregiver a protected category under federal law. Instead, FRD is a term that encompasses claims brought under numerous causes of actions, all dealing with discrimination based on an individual's caregiving responsibilities. Unlike glass ceiling problems, which typically impact professional/managerial-class employees, FRD touches upon all classes of employees. Mothers or expecting mothers facing "maternal profiling" or "the maternal wall" are the most common victims of FRD. However, these claims can be brought by anyone with caregiving responsibilities, regardless of gender.

Gender discrimination claims under Title VII of the Civil Rights Act of 1964 or similar state laws are the most common type of FRD action. In a typical case, a female employee - most often a female employee who has or will have children - claims to have been denied an employment opportunity because of stereotyping about her role and responsibility as a caregiver.

Back v. Hastings on Hudson Union Free School District is a classic example. There, a well-regarded school psychologist sued her employer for denial of tenure after returning from maternity leave. In justifying its decision to deny her tenure, her superiors allegedly discussed that it was "not possible for [her] to be a good mother and have this job," and questioned how she planned "on spacing [her] offspring." In Back, the 2nd U.S. Circuit Court of Appeals overturned the grant of summary judgment to the employer stating "stereotypical 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."

Evidence of hostile or stereotypical attitudes toward women with caregiving responsibilities has also been used, as in Dukes v. Wal-Mart Inc., to support class action claims involving pay and promotion disparities in the workplace.

Pregnancy Discrimination

Another avenue of attack for plaintiffs is the Pregnancy Discrimination Act or similar state statutes. Recent commentary suggests that employers have a propensity to hire non-mothers nearly 80 percent more of the time than a mother with an equal résumé. Pregnancy discrimination involves an allegation that an employer took adverse action or engaged in "maternal profiling" against a pregnant employee due to a belief that she cannot fulfill job expectations due to past or future pregnancy. For example, in Walsh v. National Computer Systems a top female saleswoman won a $625,000 jury verdict after being told that she "better not get pregnant again" and facing other hostilities by her supervisor upon her return from maternity leave. Pregnancy discrimination claims cover not only refusal to hire or termination but also actions such as limiting a pregnant worker's job duties or reassigning her to a lower paying job based upon pregnancy-related stereotypes.

Family and Medical Leave Issues

The Family and Medical Leave Act provides direct redress for aggrieved employees who believe their employer has deprived them opportunities because of caregiving responsibilities for their spouse, parents or children. The FMLA provides qualifying employees up to 12 work weeks of unpaid, job-protected leave in a 12-month period for: (1) the birth of a child and the first-year care of the newborn; (2) the placement of a child through adoption or foster care and the first-year care of the child; (3) the need to care for a parent, spouse or child with a serious health condition; and (4) the serious health condition of the eligible employee. An employer is obligated to grant leave in these circumstances, and the employee is entitled to reinstatement to his or her job or to a substantially equivalent position upon exhaustion of the leave.

Employees have been successful in bringing FRD claims involving interference with retaliation for exercising FMLA rights. In Schultz v. Advocate Health and Hospitals, a court awarded a 26-year maintenance employee $11.65 million in damages after he was fired in retaliation for taking FMLA leave to care for his aging parents. In Liu v. Amway Corp., a court found clear evidence of interference with FMLA rights where an employer initially refused to honor an employee's request for an extension of leave to address health conditions associated with childbirth, and later terminated the employee due to a poor evaluation written by her supervisor during her leave. Support for these and other related holdings can be found in Nevada Department of Human Resources v. Hibbs. The Supreme Court held in Hibbs that there is no state immunity under the 11th Amendment for actions brought pursuant to the FMLA. In writing for the majority, then-Chief Justice William Rehnquist noted that stereotypical views about women's domestic responsibilities are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men, creating a "self-fulfilling cycle of discrimination."

Association with a Disabled Person

Another source of potential FRD claims is the Americans with Disabilities Act. Many practitioners and human resource professionals may be unaware that Title I of the ADA prohibits discrimination based on an employee's "association" with a disabled person. The EEOC has interpreted the "association" provision to prohibit discrimination targeted at a mother or other caregiver who takes time off from work to care for a family member with a disability. In McGrenaghan v. St. Denis School, a court held in that an employer may violate the "association clause" of the ADA when it transfers a female employee from a full-day to half-day position upon the birth of her disabled son. In LeCompte v. Freeport-McMoran, a court held that an employer may violate the ADA where it fires an employee because of the significant costs associated with his child's medical condition.

Benefit Claims

Although not the most common statutory basis for FRD claims, employees have brought successful FRD claims under the Employment Retirement Income Security Act. ERISA comes into play when a medical plan, pension plan or maternity leave benefit is implicated. Under ERISA, employee caregivers have brought lawsuits: (1) to challenge refusals to hire or terminations based on employers' fears of high health insurance premiums where employees' dependents have serious medical conditions; (2) to obtain pension credits denied them because of personnel policies that required them to stop working if they became pregnant; and (3) to obtain relief from an employer's decision to terminate a pregnant employee in order to prevent her from using maternity leave benefits.

State Law Developments

Several state antidiscrimination and paid family leave laws also provide an avenue of relief for plaintiffs who raise FRD claims. Moreover, the District of Columbia and Alaska have laws that explicitly protect people from family responsibility discrimination. Two bills, HB and SB 280, are currently pending before the Pennsylvania Legislature, which, if enacted, would amend the Pennsylvania Human Relations Act explicitly to prevent discrimination based on familial or marital status. California and Washington have laws which afford paid leave benefits to employees because the adoption or birth of a child. Similar paid leave legislation is currently pending in New Jersey.

The Recent EEOC Guidance

In response to the rise in FRD claims, the EEOC released new enforcement guidance discussing discrimination against workers with caregiving responsibilities. The EEOC guidance does not create a new protected category but rather provides 20 examples of situations where stereotyping or other forms of disparate treatment may violate certain federal law. These examples include unlawful stereotyping during the hiring process and the creation of a hostile work environment based on gender-related stereotypes about caregivers.

Conclusion

With the advent of the EEOC guidance, employers can no longer ignore the growing trend of FRD claims. There may not be a federal statute using the term "FRD," but the cause of action is now undeniably part of the legal landscape and there is likely to be new legislation at the state level, which specifically prohibits FRD. It can be said with assurance, therefore, that FRD does exist and is here to stay. Employers need positively to address the issues, not only to avoid risk, but to support the changing demographics of the work force.


Reprinted with permission of the authors and the Legal Intelligencer as it originally appeared: “Family Responsibilities Discrimination: Does It Really Exist?” The Legal Intelligencer Vol. P 1801 (March 2008):5-8. Copyright © 2008 the Legal Intelligencer. All rights reserved.