Mother’s Day has just passed, and Father’s Day is coming up, so what better time to talk about family responsibility discrimination (FRD)? According to a University of California Hastings College of the Law study, the number of FRD cases being filed with the Equal Employment Opportunity Commission (EEOC) jumped almost 500 percent between 1971 and 2005. FRD happens when employers discriminate against employees based on stereotypes of family caregiving responsibilities.
Your supervisors and managers know that they can’t discriminate against employees based on stereotypes of sex, race, age, gender, religion, pregnancy, or disability (they do know that, right?). However, they may not realize that it’s FRD to assume, for instance, that a mother with three small children won’t want to travel for work or that a man would need to take time off to care for elderly parents. Since there’s no federal law expressly prohibiting FRD, employees claiming FRD traditionally have tied their claims to another form of discrimination (mainly gender).
EEOC gives employers guidelines
Last year, the EEOC released enforcement guidelines titled “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities” that specifically address FRD. The guidelines don’t create a new class of workers, but they do outline 20 scenarios that the agency would consider illegal conduct.
Today, as an increasing number of employees struggle to balance work and family obligations, employers must view the subject of family and caregiving responsibilities differently — as both an HR and risk-management issue. While the new EEOC guidelines are strictly that — guidelines — and don’t carry the force of law, they do provide guidance on how the agency will handle FRD charges. Additionally, courts, employees, and employers frequently consult EEOC guidelines for advice on how to navigate certain situations.
EEOC examples: Take heed
Here are a few of the examples the EEOC listed in its FRD guidelines. It may be helpful to give copies of these examples to your supervisors or to go over the scenarios with them in training so that you can avoid FRD at your company.
Discrimination against women with children (EEOC example 1): Charmaine, a mother of two preschool-age children, files an EEOC charge alleging sex discrimination after she is rejected for an opening in her employer’s executive training program. The employer asserts that it rejected Charmaine because candidates who were selected had better performance appraisals or more managerial experience and because she is not “executive material.” The employer also contends that the fact that half of the selectees were women shows that her rejection could not have been because of sex. However, the investigation reveals that Charmaine had more managerial experience or better performance appraisals than several selectees and was better qualified than some selectees, including both men and women, as weighted pursuant to the employer’s written selection policy. In addition, while the employer selected both men and women for the program, the only selectees with preschool age children were men. Under the circumstances, the investigator determines that Charmaine was subjected to discrimination based on her sex.
Discrimination against women with children (EEOC example 4): Anjuli, a police detective, had received glowing performance reviews during her first four years with the city’s police department and was assumed to be on a fast track for promotion. However, after she returned from leave to adopt a child during her fifth year with the department, her supervisor frequently asked how Anjuli was going to manage to stay on top of her case load while caring for an infant. Although Anjuli continued to work the same hours and close as many cases as she had before the adoption, her supervisor pointed out that none of her superiors were mothers, and he removed her from her high-profile cases, assigning her smaller, more routine cases normally handled by inexperienced detectives. The city has violated Title VII of the Civil Rights Act of 1964 by treating Anjuli less favorably because of gender-based stereotypes about working mothers.
Discrimination against men with children (example 14): Tyler, a service technician for a communications company, requests reassignment to a part-time position so that he can help care for his two-year-old daughter when his wife returns to work. Tyler’s supervisor, however, rejects the request, saying that the department has only one open slot for a part-time technician, and he has reserved it in case it is needed by a female technician. Tyler’s supervisor says that Tyler can have a part-time position should another one open up. After two months, no additional slots have opened up, and Tyler files an EEOC charge alleging sex discrimination. Under the circumstances the employer has discriminated against Tyler based on sex by denying him a part-time position.
Discrimination against applicants with disabled children (example 17): An employer is interviewing applicants for a computer programmer position. The employer determines that one of the applicants, Arnold, is the best qualified, but is reluctant to hire him because he disclosed during the interview that he is a divorced father and has sole custody of his son, who has a disability. Because the employer concludes that Arnold’s caregiving responsibilities for a person with a disability may have a negative effect on his attendance and work performance, it decides to offer the position to the second best qualified candidate, Fred, and encourages Arnold to apply for any future openings if his caregiving responsibilities change. Under the circumstances, the employer has violated the Americans with Disabilities Act by refusing to hire Arnold because of his association with an individual with a disability.