After a massive upsurge in cases, and huge awards to plaintiffs, the EEOC has issued its first guidance on family responsibilities discrimination (FRD) cases. This article details some of the practices the agency seeks to curtail.
–A female employee is up for promotion, but she doesn’t get the job, and heads for her boss’s office to find out why. The boss points to her obvious pregnancy and says, “I was going to put you in charge, but look at you now. A woman should stay home with her family. The promotion entails too much traveling for a married mother.”
–A male employee tells his boss that his wife has had health problems since their baby was born. Therefore, he needs time off to care for them, as permitted under his state’s “primary caregiver” law. The boss refuses, telling him “Women were made to have babies, and unless you can have one, there’s no way you can be a primary caregiver.”
Both these incidents are real, as reported by attorneys Lynne Anne Anderson and Laura S. Grosshans on the website, metrocorpcounsel.com. They’re examples of “family responsibilities discrimination,” or FRD. The discrimination involved comes from treating those with family responsibilities differently from other employees, or stereotyping employees because of their gender or family situation.
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Courts take these matters seriously. According to the Center for Work-Life Law at the University of California, which tracks FRD suits, such cases have increased by 400 percent in the last decade. What’s more, when FRD plaintiffs sue, they win more often than in other employment law cases, and sometimes win big. One man terminated over an FRD issue received $750,000 in compensatory damages and $10 million in punitive. His supervisors were also found personally liable. Each was ordered to pay him an additional $450,000.
Now the Equal Employment Opportunity Commission (EEOC) has weighed in on the matter, with new guidance recently published. While noting that family caregivers are not a new protected class, they are covered, says EEOC, under Title VII if the Civil Rights Act, provisions of the Americans with Disabilities Act concerning the rights of those associated with persons with disabilities, and other federal and state law. That includes the keystone of work/life balance, FMLA.
Two common practices EEOC seeks to end are:
–Treating male caregivers more favorably than female … promoting fathers but not mothers, for example.
–Sex-based stereotyping, such as reducing a female worker’s grade or refusing promotion, based on her status as a new mother.
To avoid such problems, Anderson and Grosshans offer these suggestions:
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–Review policies and procedures on hiring, promotion, and termination decisions.
–Train managers to not ask their employees about childcare, eldercare, and other caregiving responsibilities.
–Monitor performance appraisals carefully to be sure that downgrades are “not arbitrarily linked to the assumption of caregiving responsibilities.”
–Avoid “benevolent stereotyping” such as assuming a worker would not want a transfer to another relocation because his/her children are established in school locally.
“The success rate of FRD cases should not be ignored,” say Anderson and Grosshans, “and efforts to avoid FRD claims are merited.”
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