Competing work and family responsibilities are a challenge for many employees—and employers are caught in the middle. They must balance the impact of employees’ needs to care for children and parents against their own primary mission of running a business.
But when employers make employment decisions based on sex stereotypes about caregivers or favor employees who don’t have family responsibilities, affected employees can successfully sue for family responsibilities discrimination (FRD).
The EEOC attributes the increase in claims of FRD to the significant increase in the number of women working outside the home.
Women now comprise almost half the U.S. work force. But women are still the primary caregivers in most families. As people live longer, employees are increasingly responsible for caring for their elderly parents. This has led to a rise in “sandwich” caregivers—employees who have caregiving responsibilities for both children and parents.
This trend is particularly prevalent with women of color, who are more likely to be single parents and more likely to be responsible for caring for extended family, such as grandchildren or elderly relatives.
These escalating caregiving responsibilities force employers to make difficult decisions as they seek to offer their employees flexibility while still managing productivity and attendance.
The nature of FRD claims
FRD plaintiffs typically allege they have been passed over for promotions or terminated due to home responsibilities, such as caring for a child, a disabled person or an elderly parent.
Claims generally are based on supervisors’ assumptions about caregivers’ commitments—that the more caregiving responsibilities employees have, the less likely they will be committed to their jobs. For example, a supervisor might fail to promote someone based on the assumption that caregiving obligations would make her unable to handle new responsibilities or travel. That kind of behavior puts the organization at risk for an FRD claim.
Employees can bring FRD claims under a variety of legal theories, most commonly Title VII and the ADA. For example, if a company routinely allows men to leave work for personal reasons, but is more stringent when women need time for child care, the female employees probably have a claim for FRD. If a parent misses a lot of work to care for a disabled child and is terminated while other employees are permitted to miss time for personal reasons, the parent might have an ADA claim for discrimination based on association with a disabled individual.
A recent jury-decision analysis found that employers won about 47% of the cases, with almost the same average for both male and female claimants. Nonprofessional employees brought most FRD cases (62% versus 38% brought by professional employees). Half the cases were in the service sector.
Employers should note a clear trend: Juries feel compassion for employees caught in work/caregiving dilemmas. That can be an expensive lesson.
Protect against an FRD claim
While employers do not need to give special preferences for those with family responsibilities, they do need to be aware of potential problems, most likely caused by an unenlightened supervisor.
Employers should be wary of:
- Not hiring or promoting a caregiver because of assumptions about his or her commitment to work
- Crafting employment application scenarios that would, in essence, exclude parents with children
- Setting work schedules specifically designed to conflict with caregiver responsibilities
- Falsely reporting errors by a caregiver employee to create an opportunity to fire the employee
- Promoting an employee without caregiver responsibilities over a more qualified employee who is a caregiver
- Firing a pregnant employee, or suggesting an abortion in lieu of firing
- Firing or demoting an employee returning from maternity or paternity leave.
As with any employment issue, decisions affecting caregivers should be based on solid business reasons and not on stereotypical assumptions.
Final note: The EEOC has extensive guidance on FRD on its web site: www.eeoc.gov/policy/docs/caregiving.html.
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