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Family ties: Discrimination trend … and trap!

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in Discrimination and Harassment,Firing,FMLA Guidelines,Hiring,HR Management,Human Resources

by Cynthia Thomas Calvert

Family responsibility discrimination (FRD)—discrimination against employees because of their family caregiving duties—has become a hotbed for litigation against employers, and every indication is that this trend will continue. So it’s critical for employers to recognize the potential for liability and take necessary steps to avoid being the next defendant.

Caregivers go to court

FRD cases are finding their way into court in greater numbers. Some recent examples: 

  • Within an hour of telling her employer she was pregnant, a delivery driver was placed on involuntary, unpaid medical leave. The reason: Her employer thought she couldn’t do her job, even though her only restriction was she couldn’t lift more than 20 pounds. A jury awarded her more than $200,000.
  • A sales manager sued her employer after her supervisor allegedly admitted that she had missed out on a promotion she was qualified for “because you have kids.” She was awarded more than $1 million in damages.
  • A male state trooper sued the state of Maryland after he was denied family medical leave to care for his newborn child and wife, who had had a difficult delivery. The trooper alleged that a supervisor told him, “God made women to have babies,” and that his wife would have to be “dead or in a coma” before he could be considered a primary caregiver and get family medical leave. The trooper was awarded $665,000 in damages.

4 ways to stop caregiver bias

Your organization can minimize its risk by including parental and caregiver status in internal anti-discrimination policies. Having a policy sets the tone for the company and makes everyone in the company think about the issue.

Here are four ways you can help your organization avoid discriminating against parents and others with family caregiving duties:

1. Know what FRD is. Discrimination can take the form of different treatment of men and women with young children, such as selecting fathers but not mothers to receive training. Stereotyping can also lead to FRD—for example, giving less desirable assignments to mothers on the assumption that they’re not committed to their jobs.

Examples of caregiver discrimination include: 

  • Firing pregnant employees because they’ll take leave.
  • Promoting fathers or women without children rather than more qualified mothers.
  • Giving nonparents flexible schedules, but assigning parents to schedules that make child care arrangements difficult.
  • Harassing or penalizing workers who take time off to care for aging parents or sick spouses or partners.
  • Fabricating work infractions or performance deficiencies to justify firing employees with family responsibilities.

2. Train your managers. Managers may understand that it is unlawful to discriminate against an employee or applicant because she is a woman. But they may not understand that discriminating against an employee or an applicant because she is a mother may also lead to liability for gender discrimination.

Tip: Teach supervisors to spot and prevent FRD—and to proactively deal with it when it occurs.

3. Examine hiring, attendance and promotion policies to spot and correct biased standards. Make personnel decisions based on legitimate business needs, not assumptions about commitment and productivity.

4. Add a work/life component to your company’s existing diversity program. Biases against caregivers, all-or-nothing schedules and poorly administered workplace flexibility policies all lead to attrition among employees with caregiving responsibilities.

In short, employers can protect themselves both by eliminating stereotypes about caregivers from personnel decisions and by proactively creating HR programs to give all employees support for their caregiving needs.

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Author: Cynthia Thomas Calvert is deputy director for the Center of WorkLife Law at the University of California Hastings College of the Law. Contact her at cynthiacalvert@worklifelaw.org.

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