Family Responsibility Discrimination

while we do not expect this area of litigation to subside in the near future, a well-pre- and breach of contract. had violated the pda by taking adverse actions against an employee because she might fdcc quarterly/fall 2008 "equal work" in jobs that require substantially "equal skill, effort, and responsibility, and service positions). · train supervisors regarding gender discrimination, stereotyping, harassment differently than white caregiving women may invite claims of discrimination. for example, changes in the worker's actual performance; althoughfamilyresponsibilitydiscriminationisnotspecificallyprohibitedbyfederal good mother" and have a job that requires long hours, or in the statement that a where the part-time employees are disproportionately women or women with children.24 · subjecting female employees to less favorable treatment after they announced · distinguish between pregnancy-related leave and other forms of leave, ensuring · no company is immune from frd claims; indeed, many companies on the lists of guidance explains that an employer may not refuse to hire a job applicant whose wife has a of law at the university of california, berkeley, where she 11 labor law and an intern at disability rights education and defense fund (dredf). she more rigidly applied to him than to other employees). further, he was able to show that immediatelyorwouldrequireasignificantamountleave.9 explain how to seek help from human resources when needed; 948 f.2d 993 (6th tic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities frd claims under title vii and the ada.1 25 family responsibility discrimination 14 the americans with disabilities act's (ada's) prohibition against discrimination based on · assigning women with caregiving responsibilities to less prestigious or lower- becomes pregnant or assumes caregiving responsibilities without any link to family responsibility discrimination with more than 25 years of experience practicing exclusively · 92%offrdcasesarefiledbywomen;and enough because of their family responsibilities. and(3)terminatingapregnantemployeetoavoidprovidingmaternityleavebenefits.22 ployers may deny female care-givers opportunities based on assumptions about how they see eeoc enforcement guidance: unlawful disparate treatment of workers with caregiving respon- were not terminated. 29 run afoul of the family and medical leaveact (fmla), the pregnancy discriminationact fdcc quarterly/fall 2008 with an individual with a disability."2 or had young children; · plaintiffs are more likely to prevail in frd cases than other types of employ- 301 f. supp. 2d 308 (s.d.n.y. 2004). prevailed more than 50% of the time, drawing judgments of up to $25 million. given these the court ruled that "sex-plus" discrimination is actionable under section 1983 just without additional pay, and posting notes on her cubicle when she was absent stating "`out- against employees because they are parents or have family responsibilities. employees have which are performed under similar working conditions."23 1 publications, on websites and in training materials. · firing an employee for becoming pregnant; against women or men because of their caregiving responsibilities. while the primary care- and a female co-worker following her hernia surgery. stereotypes about men caring for children and stereotypes about employees of both genders id. at 69. 20 performance and make her less dependable than a male employee. employers may further bachelor of arts degree from mills college in 1997. prior to 26 in back v. hastings on the hudson union free school district,17 she was pregnant and intended to return to work at the end of her maternity leave. family responsibility discrimination beyond title vii and the ada evidence that the performance standard that led to his termination was not applied uniformly and retaliation in the context of workers with family care responsibilities, and complaints generally involve the following areas: (1) denial of, interference with, or retalia- california magazine each year since 2004, ms. miller is a fre- and take steps to avoid being the next defendant. · treating women employees harshly and giving them unfounded critical evalu- support those claims: priate actions, such as making personnel decisions based on stereotypes (e.g., a while male plaintiffs constitute a small percentage of frd claimants, roughly 8%, for liability and take steps to avoid becoming the next defendant. moreover, section 230.8 of leave for failing to meet the new performance standard. during the trial, schultz introduced 4 need someone who will be dependable"4 the epa, which prohibits wage discrimination on the basis of sex, has also been used to up to forty hours each year (eight hours each month) to participate in their child's school or cir. 2004). family responsibility discrimination is a hotbed for litigation, and every indication is ii. saying "now that you're pregnant, you will probably miss a lot of work, and we cir. 2004); fleming v. ayers & assoc., 28 burlington northern & santa fe railway corporation v. white,5 of compensatory time off will appear to be discriminatory. with disabilities. strategic advice to companies on a wide range of employment taking fmla leave to care for his aging parents. during his leave, schultz's supervisor · the average award is $100,000, and the largest award is $25 million; properly held liable for hostile actions taken after the employee returned from maternity nevada dep't of human res. v. hibbs, 538 u.s. 721, 736 (2003). held that an employment action based on stereotypes about motherhood is a form of gen- vii an employer cannot take adverse action against a pregnant employee because it anticipates data that employers should note, including the following: of jones day. charter,15 b. treatment of men caring for children thatshewillbeunabletofulfillitsjobexpectations.courtshaveheldemployersliablefor types of family responsibility claims being made paid at a higher rate than part-time employees performing essentially the same work, but after asserting that the enforcement guidance ms. freeman received her j.d. in 1996 from boalt hall school 19 · assuming a working mother would not want to relocate to another city, and family responsibility discrimination therefore ruling her out for promotion; ing responsibilities, the growing trend of frd claims has prompted the eeoc to chime in. and 2005, there was a more than 30% increase in the number of pregnancy discrimination to take compensatory time off to care for her children when her babysitter calls in sick but · train supervisors to avoid making inappropriate comments and taking inappro- 9 tion; · asking female applicants, but not male applicants, whether they were married 21 family responsibility discrimination f. special california protection for caregivers had shown because [she] had little ones at home."18 of wrongful termination, harassment, discrimination, and of law at the university of california, berkeley and her an aggressive female employee as requiring "a course at charm school," so it takes pointed to comments made about a woman's inability to combine work and motherhood as pared employer should be able to successfully meet the challenges ahead. also pursued frd cases under state common-law theories, including wrongful discharge see, e.g., grew v. kmart corp. of illinois, inc., 2006 u.s. dist. lexis 6994 (n.d. ill. feb. 26, 2006). id. id. 17 a multitude of other statutory and constitutional sources provide avenues of relief for frd caring for sick, disabled, or elderly family members. ms. phan received her j.d. in 2003 from boalt hall school 23 claim of retaliation. vi. retaliation. additionally, she advises clients regarding a credits because of a policy that required her to stop working when she became pregnant;21 no special training to discern stereotyping in the view that a woman cannot "be a giving responsibility at issue is usually childcare, an increasing proportion of care-giving tion act states that "women affected by pregnancy . . . shall be treated the same . . . as other an employer can minimize its risk by implementing the following practices: circumstances in which stereotyping or other forms of disparate treatment may violate title psychologist who argued she was denied equal protection rights when she was not recom- ms. miller is on the board of directors of the national association of minority and women cir. 1991). kerry mcinerney freeman to the level of an adverse employment action that could support a claim of retaliation. in employment-related disputes. in addition to the statistics above, the center for worklife law report highlighted other an employee's association with an individual with a disability. such discrimination may also same scheduling change into a materially adverse action giving rise to a claim of retaliation.6 discrimination and harassment. key statistics compelling employers to take notice of such claims ations after they became pregnant or gave birth; formen.thesemutuallyreinforcingstereotypescreate[]aself-fulfillingcycleofdiscrimina- id. at 120 (citation omitted). asundertitlevii,andheldtherewassufficientevidenceforthecasetosurvive cal. lab code § 1030 (west 2008). cal. lab. code § 230.8(a)(1) (west 2008). or family leave available to women; and (3) discrimination based on an association with a the center for worklife law at the university of california hastings college of the law collective action cases and represents clients before state and 19 family responsibility discrimination new mother will not be able to commit to her job); oct. 5, 2008). sick child.'"13 id. at 1155. "[wa]s not intended to create a new protected category," the eeoc went on to "illustrate actions, including policies and reasonable accommodations for individuals givers might constitute both unlawful disparate treatment under title vii and a violation of (2) reducing an employee's pension xuan-thu phan worker must show that the employer paid men and women different wages for performing and arrive late due to his responsibility to care for his wife. nor may an employer refuse to vii or the prohibition under theadaagainst discrimination based on a worker's association was a member of the berkeley journal of employment and materially adverse) to an employee without caregiving responsibilities, the same schedule 20 they were pregnant; 22 see, e.g., strait v. midwest bankcentre, inc., 398 f.3d 1011 (8th iii. mended for tenure by her female supervisors due to stereotypes regarding the ability of employers'assumptions are "benevolent" ­ "well-intentioned and perceived by the employer sibilities, notice no. 915.002, may 23, 2007, http://www.eeoc.gov/policy/docs/caregiving.html (last visited e. equal pay act a maintenance employee was awarded $11.65 million in damages · ensure that supervisors are aware of any state or local leave provisions pertain- the court explained, by plaintiffs. owned law firms (namwolf) and is a member of the federation of defense and corporate summary judgment.19 rejectsanafricanamericanwoman'ssimilarrequestswithoutanyjustification,thedenial epa has supported claims of discriminatory pay practices where full-time employees are 13 b. family and medical leave act (fmla) · downgrading an assessment of an employee's performance after the worker family responsibility discrimination claims under title vii and the ada granting similar scheduling requests made by men; 22 althoughnofederallawspecificallyprohibitsdiscriminationbasedonfamilycaregiv- tips for avoiding frd claims · have an effective mechanism for receiving and investigating complaints of 27 to bring frd cases under the fmla ­ often garnering big verdicts. in schultz v. advocate employers and hr professionals have appeared in numerous 7 longer commute, placing an employee on a rotating schedule, or terminating an employee's issues. she also defends companies in litigation involving in may 2007, the eeoc issued guidance regarding circumstances that could give rise to to all similarly situated employees (e.g., he was able to show that the requirements were that this trend will continue.accordingly, employers must recognize the potential for liability objective criteria; health and hospitals,16 family responsibility discrimination ­ or frd ­ is a form of gender discrimination fdcc quarterly/fall 2008 a. pregnancy discrimination act disabled family member. federal courts as well as before administrative agencies. fdcc quarterly/fall 2008 when, in the absence of a compensatory time-off policy, an employer allows a white employee erisahas been used successfully to challenge employer actions by caregivers in situations family responsibility discrimination 6 · ensure that employees are evaluated on performance, rather than on a supervi- instituted a monthly performance standard that evaluated employees based on the volume leave, including the following: telling the plaintiff she "`better not be pregnant again,'"11 · rejecting scheduling requests made by women for childcare reasons while family responsibility discrimination caregivers, and handle complaints from caregivers regarding possible harass- (eeoc) have recognized that there are circumstances in which discrimination against care- management in wide-ranging employment litigation matters stereotypefemalecaregiverswhoadoptpart-timeorflexibleworkschedulesas"homemak- under the pda, from employment decisions that are based on stereotypes about the relative dedication and 29 u.s.c.a. § 206(d)(1) (west 1998). found that these types of claims had increased 400% during this period, and that employees counsel (fdcc) as well as the employment law sections of a variety of bar associations. fdcc quarterly/fall 2008 joining miller law group, ms. phan was with the law firm toemployeesinitsstatestatutes.specifically,section1030ofthecalifornialaborcode in addition to the federal legislation above, california provides additional protection employees have also been successful in bringing frd cases under the fmla. for ing to parents; mother who received tenure "would not show the same level of commitment [she] 24 earned her bachelor of arts degree in 1990 from the university of california, berkeley. michele ballard miller in 1982 and her bachelor of arts degree from the university of michigan in 1978. the second circuit that code bars discharge of or discrimination against parent-employees who take leave of of work completed within a set period of time. schultz was terminated while on fmla examples, how those stereotypes can lead to frd claims, and the type of evidence that can throwingatelephonebookatherwithinstructionsto"findapediatricianwhowasopen over the past eleven years, ms. freeman has represented anti-bias laws, litigation in that area has skyrocketed in the past decade. a 2006 report by might balance work and family responsibilities. whether the stereotypes are well-meaning as being in the employee's best interests."3 30 or expulsion.26 stereotyping at issue tends to focus on women having and caring for children, stereotyping requires workplace accommodations for lactating mothers.25 male plaintiffs'claims, like their female counterparts', have about a 50% success rate. men's moreover, the united states supreme court has emphasized that an employee's care- quent lecturer on employment issues both for firm clients and iv. 15 ing mothers or other female caregivers; liu v. amway corp., 347 f.3d 1125 (9th cir. 2003). supervisor became antagonistic toward her and critical of her work after she told him that and its related award of $625,000 in damages, the eighth circuit found an employer was because the ada prohibits discrimination based on an individual's association with, a woman is incapacitated by pregnancy or childbirth; the approvals do not have a disparate impact on caregivers; · revise anti-harassment policies to include examples of harassment directed at in state and federal court, including those involving claims with plaintiff's fmla leave by pressuring the plaintiff to reduce her leave and using her on his attendance and work performance. ingnumbersofstateandlocallawshavecroppedupspecificallyprohibitingdiscrimination thatanyleavespecificallyprovidedtowomenaloneislimitedtotheperiodthat 10 in walsh v. national computer systems, inc.,10 giving status should factor into the analysis of whether a challenged personnel action rises paid positions; see, e.g., lovell v. bbnt, 295 f. supp. 2d 611 (e.d. va. 2003), reh'g denied, 299 f. supp. 2d 612 (e.d. or relationship to an individual with a disability, an employer may not treat a worker less tionfortakingleavetocareforafamilymember;(2)denialofflexibleworkarrangements becomepregnantinthefuture.affirmingajury'sverdictofdiscriminationandharassment, sources of family responsibility discrimination claims ployment litigation, including race, gender, age, and disability performance evaluations on documented objective criteria and observations); fdcc quarterly/fall 2008 complaintsfiledwiththeeeocandstateenforcementagencies.thepregnancydiscrimina- the eeoc recognized that the frd cases tend to arise the ninth circuit held that the employer interfered signed lifting duties for a male co-worker who hurt his arm in a car accident pendent to avoid higher health insurance premiums;20 25 18 tion."7 ms. miller received her j.d. from the university of california, hastings college of the law, ers" who are less committed to the workplace than their full-time colleagues. sometimes · 62%ofthecasesarefiledbyemployeesinnon-professionaloccupations(mostly the eeoc guidance also warns employers that treating caregiving women of color 24 persons not so affected but similar in their ability or inability to work."8 named a "super lawyer" by super lawyers - northern c. treatment of men and women caring for disabled or aging family after hours,"12 protect the rights of family caregivers in the workplace. to prevail under this law, the female awidevarietyofemploymentactions,suchastransferringanemployeetoanofficewitha relying on this array of stereotypes, some em- daycare activities, or who take time off to appear at a child's school because of suspension 12 scrutinizing her hours more than other employees,' increasing her workload wayofexample,thatwhereasaschedulechangemightbeinsignificant(andthereforenot son because the employer assumes his caregiving responsibilities will have a negative effect discrimination and wage and hour disputes. she has experi- der discrimination in violation of the equal protection clause. elana back was a school variety of workplace issues including misconduct investiga- burlington northern puts employers on notice that where family caregivers are concerned, · deviating from workplace policies when taking a challenged employment ac- c. equal protection clause · refusing to hire women with preschool aged children, even though men with · refusing to reassign lifting duties for a pregnant worker despite having reas- focuses on caring for the elderly and disabled. although federal law does not prohibit such [j]ust as it takes no special training to discern sex stereotyping in a description of preschool aged children are hired; when challenging employers'alleged unfair treatment of family caregivers in the workplace, have been sued for frd; ment in the same manner as others; and change could "matter enormously" to a mother with school age children, thus converting the women with young children to successfully combine work and mothering duties. plaintiff or not, the eeoc guidance warns employers, both by citing actual cases and providing d. erisa id. id. at 118. 8 in the area of labor and employment law, ms. miller provides competency of caregivers, rather than on individual performance or behavior. although the other employees who did not meet the performance standards and were not on fmla leave the eighth circuit found that an employer hirethemostqualifiedcandidatewhoisadivorcedfatherwithsolecustodyofhisdisabled 16 asurveyoffrdcasesbeingfiledshowstheyinvolveavarietyofdifferentemployment 2 disability because the employer assumes that the applicant would have to use frequent leave id. it is becoming increasingly common for employees caring for aging family members · providingnegativesubjectiveassessmentsthatarenotsupportedbyspecific ms. phan's practice focuses on all aspects of labor and em- employers often make the gender-based assumption that being pregnant and having 23 direct evidence of gender bias. in considering her claim, the court reasoned that · denying family leave request for a male employee to care for his newborn baby ence defending single plaintiff, multi-plaintiff, class action and a. treatment of women who are pregnant or caring for children 42 u.s.c.a. § 2000e(k) (west 2003). leave as a negative factor in the company's decision to terminate her. and in batka v. prime (erisa), and the equal protection clause of the u.s. constitution. moreover, an increas- · failing to promote mothers based on an assumption that they will not work hard discrimination per se, both the courts and the equal employment opportunity commission outside groups. her articles on employment issues affecting claims of discrimination, harassment, retaliation and other · review leave requests and monitor approved leave by type and length to ensure refusing to hire pregnant applicants based on the assumption they would not return to work 332 f.3d 1150 (8th cir. 2003). favorably based on stereotypical assumptions about the worker's ability to perform job du- 26 current or future childcare responsibilities will interfere with a female employee's work afterhebroughtsuitalleging,amongotherthings,thathehadbeenfiredinretaliationfor i. 5 and women without children; tions, employee discipline, workplace violence, personnel see wagner v. dillard dep't stores, 17 fed. appx. 141, 149 (4th cir. 2001). example, in liu v. amway corporation,14 best companies to work for as rated by fortune and working mother magazines ment discrimination cases; · making stereotypical or derogatory comments about pregnant workers or work- burlington northern & santa fe railway corporation v. white, 548 u.s. 53 (2006). · forcing an employee to go on unpaid leave after missing two days of work, (pda), the equal pay act of 1963 (epa), the employee retirement income security act extending the reach of the pda, sor's assumption about the employee's commitment to his or her job (base all telecommuting arrangement, could be considered materially adverse actions supporting a although plaintiffs have relied on title vii and the ada more than any other statutes because the employer believed only women should be caregivers; and id. the plaintiff successfully claimed her employer retaliated against her when her statistics, this trend will likely continue.accordingly, employers must recognize the potential · failing to promote women with children while promoting men with children pregnancy discrimination complaints are a large subset of frd cases. between 1992 ; and about caregiving responsibilities is not limited to women and childcare issues ­ it includes including (1) refusing to hire or terminating an employee with an ill family member or de- 2002 wl 1067256 (n.d. ill. may 28, 2002). 3 va. 2004). with respect to frd cases, the see, e.g., maki v. allete, inc., 383 f.3d 740 (8th ties satisfactorily while also caring for someone with a disability. for example, the eeoc 21 365 f.3d 107 (2d cir. 2004). as the united states supreme court has observed, "[s]tereotypes about women's domes-