If you’re not yet familiar with the term “family responsibility discrimination” (FRD), get ready—chances are, you’ll be hearing it a lot in the future. Although related to both sex and pregnancy discrimination, the term encompasses the broader idea that employers are biased against new parents/primary family care providers.
Currently, California law does not specifically prohibit this sort of bias. However, a 2007 bill that would have added “familial status” to the list of protected groups under the California Fair Employment and Housing Act (FEHA) overwhelmingly passed both houses of the California legislature. Governor Schwarzenegger ultimately vetoed the bill, but his term expires next year, and the bill is likely to resurface under a new administration.
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According to the San Francisco based Center for WorkLife Law, FRD-based litigation rose a staggering 400% between 1996 and 2005. Here are just a few examples of actions that can lead to a FRD lawsuit under current sex/pregnancy discrimination laws:
- Failing to hire or promote women who have or plan to have children, while hiring and promoting men who have or plan to have children;
- Terminating or laying off a female employee after being informed that the employee is pregnant;
- Comments made to female employees indicating that they should be home with their children instead of at work;
- Failing to give male employees with children the same paid/unpaid leave benefits granted to female employees with children;
- Asking female applicants or employees about child-bearing plans, while not making the same inquiries of male applicants or employees;
- Denying female employees flexible or work-at-home schedules, while providing them to male employees;
- Statements indicating the belief that mothers are not as committed to their jobs as their male counterparts.
If “familial status” is added as a protected group under FEHA, the following are some additional examples of gender-neutral conduct that will likely form the basis for a whole new frontier of employment litigation:
- Denying employment or advancement opportunities to single parents;
- Statements to new parents, male or female, indicating that they need to re-demonstrate their devotion to the job after the birth/adoption of a child;
- Denying employees with child/family care responsibilities positions or assignments that require travel;
- Applying harsher work standards or heightened performance scrutiny to employees with family care giving responsibilities;
- Asking any employee about his or her child-bearing plans;
- Discriminating against employees who have primary care responsibilities for aging parents or other close relatives.
For the time being, you can protect yourself by providing comprehensive sex and pregnancy bias training to all managers and supervisors, and conduct periodic self-audits to ensure policies are being applied consistently. Additionally, performance reviews should be audited to ensure that the focus is actual performance.