The guiding rule-of-thumb to avoid discriminating against employees with caregiving responsibilities: Treat them as you would employees without such responsibilities.
That was the message for employers during the March 11, 2008, session, “Family Responsibilities Discrimination—See Dick and Jane Sue,” at the Society for Human Resource Management (SHRM) 25th annual Employment Law & Legislative Conference in Washington, D.C.
Family responsibilities discrimination (FRD) is employment discrimination based on stereotypes, explained speaker and attorney Joseph L. Beachboard, who is with the California-based law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
It’s discrimination even when there is no hostile intent, such as not sending a pregnant employee on travel-related work out of concern for her health, he added.
Beachboard used case law to illustrate the Equal Employment Opportunity Commission’s recently issued enforcement guidance that addressed unlawful disparate treatment of employees who have caregiving responsibilities.
“Changing workplace demographics, including women’s increased participation in the labor force,” according to the EEOC guidance, “have created the potential for greater discrimination against working parents and others with care-giving responsibilities.”
Its guidance, issued May 23, 2007, was intended to address the potential for greater discrimination against working parents and others with caregiving responsibilities, including members of the “sandwich generation,” those who take care of children as well as aging parents, according to Beachboard.
Family responsibility discrimination occurs when personnel action is taken because of a stereotype, based on an employee’s caregiver role, that the employee cannot be both a good caregiver and a good worker, he said. The wrongful assumption is that taking care of another person must interfere with job performance.
FRD suits tend to be filed by women (92 percent), by those in the service industry (51 percent) and by workers in nonprofessional occupations (62 percent), Beachboard said, citing findings from a 2006 paper Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination Against Workers with Family Responsibilities from the Center for WorkLife Law.
From 1996 to 2005, according to that paper, the number of FRD cases filed grew nearly 400 percent—from 97 cases to 481. The Midwest and East Coast have seen the greatest number of FRD lawsuits, and small local businesses make up the largest component of companies who are sued for family responsibility discrimination, Beachboard said.
Family responsibility discrimination can take a number of forms, he told SHRM members:
- Sex-based disparate treatment of female caregivers. Example: Hiring men with preschool-age children while refusing to hire women with preschool-age children.
- Pregnancy discrimination. Examples: Assuming female caregivers will be less dependable than male caregivers; refusing to promote a mother to a travel-heavy position.
- Discrimination against male caregivers. Example: Denying a one-year childrearing leave to a male employee even though it’s available to female employees under your collective bargaining agreement.
- Discrimination against women of color who are caregivers. Example: A Latina worker is subjected to a supervisor’s stereotypical notion about working or pregnant workers as well as his/her general hostility toward Latinos.
- Unlawful stereotyping under the Americans with Disabilities Act. Example: Reassigning an employee to a less prestigious job because you know the employee will need to leave early to care for a disabled child.
- A hostile work environment. Example: Offensive comments or other harassment based on an employee’s protected characteristic.
- Retaliation. Example: Changing a caregiver’s schedule in a way that makes his or her work and family balance vulnerable.
Employers can avoid stepping into the FRD minefield, Beachboard said, by:
- Reviewing policies, practices and hiring and assessment criteria to avoid getting smacked in the face with the “rakes out there you may step on.”
- Considering adopting policies prohibiting FRD.
- Educating and training managers and employees about proper behavior.
- Training your interviewers. “Bad [interview] questions can lead to problems,” Beachboard said.
- Making decisions based on facts, not stereotypes.
Kathy Gurchiek is associate editor for HR News. She can be reached at firstname.lastname@example.org.