Handle with Care

Human resource professionals can minimize the growing risks of lawsuits from caregivers.

By Rita Zeidner Nov 1, 2009

November CoverWhen Pam and Mike Estes arrived at Brooke Army Medical Center in San Antonio in December 2005, job status wasn’t high on their list of worries. Of immediate concern was the condition of their 18-year-old son Jason Ehrhart, an Army infantryman in intensive care for severe burns from a roadside bombing outside Baghdad. 

"We were so naïve," recalls Pam Estes. "We thought, because we didn’t hear words like ‘trauma,’ it wasn’t that bad. We didn’t know they were thinking Jason wouldn’t make it."

Today, Ehrhart’s surface wounds are mostly healed, but he’s far from back to normal. Thrown violently in the blast, he suffered traumatic brain injury and now has difficulty remembering from one moment to the next. With both legs ravaged, he can only walk with the help of others and mainly gets around using a motorized wheelchair.

His parents attend to mountains of paperwork to ensure that he continues receiving physical and occupational therapies.

The Esteses credit their employers for making it easier to help their son recover and adjust while still holding on to their jobs. During the three months Ehrhart was in a coma, and for months after, they attended to business from Army hospitals, staying in touch with their offices via e-mail and cell phones, and working weekends and evenings to make up for time spent with Ehrhart and his medical team.

"I don’t know that our arrangement would work for everyone, but it worked for us," says Mike Estes, a systems engineer with In-Depth Engineering, a defense contractor in Fairfax, Va. Pam Estes is payroll director for W.R. Grace, a chemical manufacturer in Columbia, Md.

Their flexible schedules hint at a broader acceptance of the challenges faced by workers juggling demands at work and home. Since 1985, the proportion of U.S. workers given leeway in work hours has more than doubled, to 30 percent, according to government statistics.

Nevertheless, a troubling trend has emerged: In growing numbers, a broad spectrum of workers with family responsibilities—pregnant women, mothers and fathers, and employees caring for aging parents among them––say they are losing out on job opportunities, pay and benefits because their bosses assume family responsibilities are at odds with their jobs. Hence, HR professionals who allow stereotypes about caregivers, rather than facts, to control employment decisions increase their companies’ exposure to lawsuits—and put the well-being of workers on the line.

Who Cares?

Legal complaints by workers claiming unequal treatment based on caregiver status, also known as family responsibility discrimination (FRD), increased by nearly 400 percent from 1995 to 2005––from 97 cases to 481—according to the Center for WorkLife Law (WLL), a nonprofit research and advocacy group at Hastings Law School in San Francisco.

Circumstances vary wildly—from that of a Maine insurance employee with children who was told she was passed over for a promotion because she "has too much on her plate" to a Maryland trooper denied family and medical leave based on his department’s policy that only mothers can be considered primary caregivers.

Joan Williams, the WLL’s founder and director, looks at workplace issues in novel ways. In 1999, she came up with the "mothers and others" principle to redefine the U.S. pay gap: Women without children have closed the pay gap with men, she found, but mothers’ pay lags. Today she is hyperfocused on FRD, assiduously on the lookout for emerging patterns and serving as a neutral advisor to policy-makers on ways to keep employers out of court and level the playing field for at-risk workers.

Employers have a huge stake in taking FRD seriously. While plaintiffs prevail in only about 20 percent of cases alleging race, sex or other more familiar types of discrimination, the win rate in FRD litigation is twice that, according to the WLL. The average damage award is $800,000, although the amount is skewed by a record $25 million judgment to multiple plaintiffs. Still, 54 percent of all FRD judgments are greater than $100,000.

Caregivers aren’t specifically named in most of the civil rights laws human resource professionals know best. Still, litigation risks loom large for employers whose managers single out workers based on assumptions about family responsibilities.

Two years ago, lawyers at the U.S. Equal Employment Opportunity Commission (EEOC) added caregivers to an enforcement initiative aimed at systemic discrimination. The EEOC field staff members were trained to recognize practices likely to support an employee’s FRD complaint. "It is a form of discrimination to make an assumption based on what you assume to be true about a group, including people with family responsibilities," says Washington, D.C., employment attorney Leslie Silverman of Proskauer Rose, who led the caregiver initiative while vice chair at the EEOC.

In addition, state and local lawmakers are cracking down on FRD. In Alaska, for example, it is illegal to discriminate against a worker based on parenthood. Job protection in Washington, D.C., extends to workers with parental responsibilities. More than five dozen jurisdictions have similar laws.

Mothers’ Load

While gender stereotypes form the core of most FRD complaints, reining in managers and others with prejudices against caregivers may be a daunting challenge for HR professionals. Several recent studies independently arrived at the same ominous conclusion: Negative stereotypes about working mothers––by far the majority of plaintiffs in FRD cases––are pervasive and have a significant impact on hiring, pay and other employment decisions.

In a noteworthy study published in the March 2007 American Journal of Sociology, researchers constructed resumes and cover letters for fictitious job applicants assigned female- and male-sounding first names. Each had similar qualifications, but some of the ersatz cover letters mentioned that applicants were officers in elementary school parent-teacher associations. Other cover letters, designed to represent childless people, mentioned that the applicants were college alumni association officers. When letters were sent to actual employers, mothers received about half the number of callbacks as childless women. Fathers figured somewhere in the middle.

Other studies, designed to detect employer bias, show that—all else being equal—mothers are offered lower starting salaries, considered less competent and held to higher standards than others.

Experiments may be a crude approximation of what actually happens in the workplace. Several recent cases, however, prove that the biases they expose are real. HR managers and other business leaders who refuse to learn from costly mistakes made by others risk repeating them.

Laurie Chadwick, a claims recovery specialist in Maine with stellar performance ratings, thought she collided head-on with such bias when she applied for a promotion with longtime employer WellPoint Inc. A mother with 6-year-old triplets and an 11-year-old son, and a night-school student, she received an e-mail from the hiring manager two months before she was turned down for the promotion. "Oh my," the manager had written, "I did not know you had triplets. Bless you!"

When notifying Chadwick that she had selected another candidate, the supervisor explained: "It was nothing you did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now," according to court documents. In the same conversation, the manager said: If the three interviewers "were in your position, they would feel overwhelmed."

Although her complaint, Chadwick v. WellPoint Inc., initially was dismissed, the 1st U.S. Circuit Court of Appeals decided earlier this year that Chadwick had a case to bring to trial. "Given the common stereotype about the job performance of women with children and given the surrounding circumstantial evidence presented by Chadwick," the court ruled, "a reasonable jury could find that WellPoint would not have denied a promotion to a similarly qualified man because he had ‘too much on his plate’ and would be ‘overwhelmed’ by the new job, given ‘the kids’ and his schooling."

In Gallina v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, attorney Dawn Gallina sued her employer, a Boston law firm, after she was fired in 2001 for what she called retaliatory reasons. According to court documents, her managing partner began to treat her differently after he discovered she had a small child and even asked why she hadn’t told him about her child when she interviewed for the job. He told her what she interpreted as a "cautionary tale" about another associate who, after returning from maternity leave, had the audacity to inquire about making partner. Despite the fact Gallina received good ratings from others, the managing partner accused her of not being as committed as other lawyers in the office.

She complained to upper management, then was chastised for embarrassing the firm and denied a promotion before she was let go. After a jury awarded her $520,000 in compensatory damages and back pay, the 4th U.S. Circuit Court of Appeals ruled that she was eligible for punitive damages. The case settled for an undisclosed sum.

See You in Court

The majority of companies sued for family responsibility discrimination are small, local businesses. Yet larger employers also face such lawsuits. As of 2006, Wal-Mart had been sued five times. Even companies with progressive, family-friendly practices have been sued, although courts don’t necessarily find fault. IBM, a perennial winner of Working Mother magazine’s "Best Companies for Working Mothers" designation, has been sued three times, according to the Center for WorkLife Law, a nonprofit research and advocacy group at Hastings Law School in San Francisco. And household brands such as Sara Lee Corp. and UPS each have been sued twice.

In Glenn-Davis v. City of Oakland, Calif., a federal jury awarded $2 million in 2006 to a former police lieutenant who alleged that managers in the Police Department of Oakland, Calif., passed over her for a promotion because she was pregnant and had young children. After learning the worker was pregnant, her supervisor expressed concern about her "commitment" and encouraged her to join work-related committees and groups to show her dedication. Last year, the parties settled for nearly $1.3 million.

All in the Family

Employers may also run into legal problems when they deny fathers the same allowances they make for mothers. After nearly a decade of trials and appeals beginning in 1996, a district court in Maryland ordered the state to pay $300,000 to trooper Kevin Knussman, concluding in Knussman v. Maryland that the state had acted illegally when it denied Knussman family and medical leave to care for his newborn and wife after her difficult delivery. According to court documents, a supervisor told him that "God made women to have babies" and that his wife would have to be "dead or in a coma" before Knussman could be considered a primary caregiver and get family and medical leave.

Employees caring for aging parents are also legally protected against FRD. In Schultz v. Advocate Health and Hospitals Corp., a jury awarded Chicago maintenance worker Chris Schultz $11.65 million in 2002 after he argued that the hospital where he had worked for more than 25 years interfered with his family and medical leave and retaliated against him. Caring for a mother with congestive heart problems and severe diabetes, and a father with Alzheimer’s disease, Schultz requested and was approved for intermittent leave. But while Schultz was caring for his parents, his supervisor suddenly instituted productivity measures Schultz couldn’t meet while away. On appeal, the parties settled for an undisclosed amount.

Of course, not all actions caregivers might consider unfair are illegal. But during the economic downturn, employers increase their risk of crossing the line if money-saving efforts disproportionately impact workers with families, the WLL’s deputy director Cynthia Calvert told the congressional Joint Economic Committee during a July hearing. Since January 2008, WLL staff members received 45 calls from women terminated shortly before, during or shortly after pregnancies. Some were told their positions were eliminated for budgetary reasons. In one instance, however, the worker was not given the option of applying for open positions, Calvert said. Two others said their employers hired replacements after they were let go.

WLL staffers also hear from employees whose employers cut back on flexible work arrangements for economic reasons. "These callers unanimously expressed their needs for flexibility and feelings of near desperation at facing unemployment because of their inability to work a standard schedule," Calvert said. Making changes to flexible schedules or work-at-home arrangements could be discriminatory if the changes target caregivers and are rooted in the presumption that they are less committed to their jobs than others, legal experts agree.

Work in Progress

Valley Credit Union in San Jose, Calif., is among a breed of employer pushing the boundaries of the family-friendly workplace. Since 1997, it has allowed parents to bring babies to work until they are 8 months old or can crawl. The babies mostly sleep in cribs or playpens by their parents’ desks while their moms and dads work.

For HR professionals at employers such as Valley, questioning whether caregivers are up to the job is beside the point; shaping the workplace to keep workers on board at various life stages remains key to their survival. Valley launched the so-called Babies in the Workplace Program to lure workers back from parental leave sooner, according to Debbie Sallen, Valley’s HR chief. "We definitely had some self-interest," she says.

Sallen and others at Valley were wary at first and minimized the risk by developing a policy and requiring participants to sign liability waivers. But problems never materialized. To the contrary, the program has led to significant savings in paid parental leave, which is a requirement in California, and improved recruitment, retention and morale.

Valley’s solution may be impractical or unsafe in many settings. In some instances, supervisors are helping workers’ achieve balance in their professional and personal lives simply by managing smarter. By having employees work from home, Tim Wilson, Mike Estes’ boss at the time his son was wounded, says he pumps the money he otherwise would pay to a landlord into higher salaries that, in turn, allow him to attract the best workers and grow his business.

Joan Accarino became a nurse in the late 1960s when senior nurses’ poor treatment of their younger charges garnered them an unflattering reputation for "eating their young." She resolved to do better. As assistant director of nursing at the Jewish Home, a 450-bed nursing home in San Francisco, she cross-trains workers to ensure that there is always someone on hand to fill in for a colleague who needs, or wants, to take leave. In some instances, that has meant teaching nurses skills not usually associated with the profession, such as budgeting, scheduling and conflict resolution. "My philosophy has always been not to keep skills hidden but to share them," Accarino says.

Ever since her husband was diagnosed with lung cancer in 2007, the approach has paid off in a way she never anticipated: When Accarino has to miss work to care for him, she knows patients are in competent hands.

"My goal has always been to train nurses to replace me," she says.

The author is senior writer for HR Magazine. 

Please share your experience managing workers with family responsibilities.

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