Leave Policy/Compliance

Thanksgiving Brings Workplace Family Responsibilities Concerns … and Lawsuits!

This year, while you’re thinking about families, think about the Workplace Family Responsibilities movement too.

Thanksgiving is traditionally a time of emphasis on the family, and for recalling that wonderful Norman Rockwell painting of several generations of a family, healthy and at leisure, sharing turkey and all the trimmings.

The real picture of family life in America today is somewhat different. As their employers call for more and more productivity, working parents strive to simply find someone to care for the children. In addition, there’s a new generation for them to look after … their own parents … as the Baby Boom ages and its need for care increases.

Both trends have impacted the workplace. The American Association for Retired Persons reports that, “57 percent of workers now have to go in late, leave early or take time off to care for a loved one.” Meanwhile, the Family and Medical Leave Act (FMLA), allows up to 12 weeks of unpaid leave for just such purposes.

Of course, while workers are caring for loved ones, someone still has to do their jobs, a costly proposition. So leading-edge companies have instituted programs to help their workers care for their families, but also to stay on the job.

About 25 percent of companies now offer referrals to qualified caregiver organizations, and some have gone further, says The Wall Street Journal. Prudential Financial, Inc. pays much of the cost of drawing up a complete care plan for elderly parents, including evaluation of out-of-state facilities. And publisher McGraw-Hill allows workers to enroll a parent in the company-paid healthcare plan at regular rates.

Alston & Bird, LLP, an Atlanta law firm, eases the financial burden for those who must take off but can’t afford to do so unpaid, through a program in which employees can donate their own unused vacation time to a colleague who needs it. Four months of leave were donated in one recent case.

The Other Side of the Family Responsibilities Issue … Lawsuits

While many companies seek to help their workers achieve reasonable work/family life balance, some would rather be rid of the “problem” by terminating or demoting workers with family responsibilities. The burgeoning family responsibilities movement has an answer for that too. Family Responsibilities Discrimination (FRD) lawsuits are up more than 400 percent in a decade, says the Center for WorkLife Law.

An FRD suit can be launched by any adverse workplace action taken due to family responsibility issues. If a female parent is granted flextime work to care for her children, but a male parent is denied the same request, the male parent can sue. If a woman with preschool-aged children is not hired, but a man in similar circumstances is, she can sue. And if an employee loses out on a promotion because, says the boss, “he/she is always off taking those kids to a doctor appointment,” that’s another lawsuit in the making.

Such suits are both extremely winnable (50 percent, compared to 20 percent for discrimination cases as a whole) and expensive (average award is over $100,000). HR professionals should therefore take care that their organizations take note of, and create policies that accommodate family responsibilities. And that their managerial personnel respect these policies.

“[Employers] should be very concerned about what front-level supervisors know about… family responsibilities discrimination,” says Mary Still, who studies the topic for the Center for WorkLife Law. “It’s not just going to go away.”

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  • ccalvert

    I am a management-side employment attorney, and I work with the Center for WorkLife Law (the organization that studies family responsibilities discrimination). As I read the hundreds of court rulings in FRD cases, I am continually struck by the fact that supervisors do not understand what FRD is or how to prevent it. (It is amazing the number of times supervisors tell employees directly to their faces that they aren’t being promoted or are being terminated or whatever because of their family obligations.)

    In a nutshell, FRD cases tend to arise when supervisors make quick assumptions about how an employee will or should act now that he or she has family caregiving responsibilities, and then take negative personnel actions based on those assumptions. For example, a supervisor may assume that a mother of young children will have an absenteeism problem or a worker who has to care for a dying parent won’t be productive at work, and the supervisor will therefore try to get the person to quit by being overly critical of his or her work, scrutinizing his or her every move, and giving him or her negative evaluations. If the employee doesn’t quit, he or she might be demoted or terminated. (There are many examples of FRD situations on our website, http://www.worklifelaw.org.) The supervisor often does not know that doing this can violate Title VII (taking action based on sex-based stereotypes), the FMLA (retaliation/discrimination for taking leave), or a whole host of other statutes and common law actions.

    A key step for HR professionals to take to help their organizations avoid these types of situations would be to train the supervisors on the legal issues surrounding FRD and the common factual situations in which FRD arises. I usually train my clients’ supervisors also on the business reasons why companies try to retain workers by giving them some flexibility to get through difficult times in their lives (saves attrition/recruiting/training costs, improves loyalty/productivity/morale, etc.).

    WorkLife Law has several resources for employers at its website, and more are being added all the time. We’re always happy to talk with employers and HR professionals about FRD questions and situations that arise in workplaces — contact information is on the site.