Today's expert, attorney Christopher M. Leh, a partner with Boulder, Colorado, office of law firm Holland and Hart LLP, answered those questions and more during a recent BLR audio conference.

FRD Is a Concept

First or all, says Leh, FRD is a concept; it’s not a rule or statute. FRD is an umbrella term that refers to claims made under existing discrimination laws that involve situations in which people are treated worse at work because of caregiving responsibilities.

For example, if a woman with childcare responsibilities is treated different than a male with similar responsibilities, that would be an FRD issue, but the actual charge would be sex discrimination under Title VII.

Why the Sudden Interest in FRD?

A lot of the interest in FRD is fueled by Baby Boomers, who are also known as the "sandwich" generation because they shoulder both childcare and eldercare responsibilities.

An additional challenge is that these responsibilities tend to fall more heavily on women, which makes sex discrimination cases likely.

Further, among women, there are certain groups that studies show as having proportionately more responsibility for caregiving—African-American women, for example, which makes racial discrimination cases likely.

Claims Under the FRD Umbrella

Leh gives a rundown of the types of claims encompassed by FRD.

Gender-based FRD claims. For example, female caregivers are treated different than male caregivers, or if a company discriminates against women with children.

Unlawful stereotyping. For example, in one early claim of FRD, the Martin Marietta case, the company didn’t accept applications from women with preschool-aged children. The court said that approach is impermissible.

Different standards for females. For example, if a supervisor gives new mothers lesser work assignments or encourages them to go home early. Such acts may be benevolent, but if the effect is a reduced chance for promotion or bonuses, it can be discriminatory.

Pregnancy discrimination. An employer can't discriminate against employees because they are pregnant. A typical scenario would involve a worker allowed leave for a few days missed due to pregnancy, while a similarly-situated man who missed similar amounts of time was not allowed leave. That's probably going to be a valid claim, says Leh.

Discrimination against women of color. This area is being litigated more and more, says Leh. It's especially bad because it combines both sex and race discrimination. In one typical scenario, a Latina worker requests comp time so she can be absent occasionally to care for her child. Her request is denied, but an investigation reveals that several white employees in the same job did get time off for child care. Once again, this would probably be a successful discrimination charge.

Male caregivers. We often think that FRD claims are those that only a woman can bring, but think about male caregivers who have custody of children, says Leh. Gender stereotypes can affect these men if the employer puts greater strain or added responsibilities on the employee because he is male and the boss thinks men should be the breadwinners, whose place is, therefore, at work.

Association discrimination. Consider a male applicant who has children who are not disabled and a female applicant with a child who is disabled. The employer hires the male because hiring the female is potentially going to create a situation where she is not focused on the job because of her association. This is prohibited under the Americans with Disabilities Act.

What to Do

Leh says the key to FRD is simple: Focus on individual employee's work performance, the requirements of the job, and whether the employee is fulfilling them, not on pregnancy, childcare, or other family responsibilities, says Leh.

In the next Advisor: Leh's step-by-step advice for FRD management, and an introduction to a checklist system that helps keep all your policies up to date.