Consider the following two scenarios:
- A male employee requests extended leave to provide at-home care to a sick child. Instead of evaluating the request based on his eligibility for leave, the employer questions why the child’s mother can’t care for her.
- A qualified female employee with two preschool children is considered a “poor fit” for a promotion because the job requires out-of-town travel and would reduce her parenting time.
Although you may not have experienced those situations, you can probably recognize the cultural stereotype that mothers should be responsible for taking care of children. Unfortunately, factoring in that stereotype when making employment decisions is a form of gender discrimination known as family responsibility discrimination (FRD).
The connection between discrimination and family responsibilities isn’t always easily identified, however. When has an employer’s conduct based on family care issues been found discriminatory? What types of workplace claims tend to lead to FRD issues? Read on to learn more about this growing problem.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination
Unexamined stereotypes lead to discrimination
Family responsibility discrimination, also known as “caregiver” discrimination, is a growing trend. Although it isn’t a new claim, FRD is a type of gender discrimination resulting from unexamined stereotypes or assumptions about how employees should act and be treated in the workplace based on their family caregiving responsibilities. FRD arises when an employment decision is made based on the employer’s beliefs about the employee’s family responsibilities instead of her knowledge, skill, and abilities.
FRD claims aren’t exclusive to female employees — men are also victims. When female employees are granted parental leave or flexible work schedules to care for aging parents but their male counterparts are denied or strongly discouraged from exercising those options, the men are victims of FRD.
Why is family responsibiility discrimination something employers should be concerned about? From 2000 to 2005, employment discrimination claims decreased by 23 percent. During the same period, it’s estimated that FRD claims increased by 400 percent.
As baby boomers age and the complexion of the American family changes, increasing numbers of baby boomers, both male and female, will be called on to care for aging parents.
According to the Center for Worklife Law, employers need to enact policies and train supervisors to better understand how to identify the connection between handling family care responsibility issues in the workplace and the potential for discrimination claims.
Typical FRD claims may include:
- failing to promote women with children while men with children and women without children climb the corporate ladder;
- refusing to hire or failing to promote parents who have special-needs children;
- refusing to hire or firing employees who become pregnant;
- assigning rotating shift responsibilities to women with children despite their requests for regular shifts while providing regular shifts to male employees;
- refusing to give male employees leave to care for children based on the stereotype that only women should be caregivers;
- giving women who become pregnant or have given birth more critical evaluations because of stereotypical perceptions about family care limitations; and
- hiring men with toddlers but refusing to hire women with preschoolers.
State-by-state comparison of 50 employment laws in all 50 states, including discrimination, pregnancy leave, breastfeeding, and small necessities leave
Training is key
You should review your policies, practices, procedures, and attitudes on discrimination against employees faced with family care responsibilities. Because the basis of FRD may be largely attitudinal, education and training are very important.
While most supervisors today know they can’t say things like “I don’t want a woman working here,” the same awareness about statements like “I don’t see how you can be a good worker and a good mother,” “Don’t have a baby if you want to get ahead here,” and “Men make better employees because they don’t take time off to have babies” doesn’t exist.
There are several points to emphasize during training. Most important, personnel actions have to be based on legitimate business needs and individual performance, not on stereotypes and biases.
Rather than assuming that a man with aging parents wouldn’t want a rush assignment or a woman with children wouldn’t want a promotion that requires overtime, for example, supervisors should ask them.
Instead of trying to force an employee with family responsibilities to quit by making his job unpleasant, supervisors should work with him to manage his workload and schedule so he remains productive.
The business benefits of such active management can’t be overlooked. It’s far cheaper to retain a worker who’s already trained and experienced than it is to replace him, and retention helps morale and productivity. Here are some other ways to avoid FRD claims:
- Training should address specific common stereotypes like men who take leave to care for family members are effeminate, slackers, or not team players or women with demanding careers are better off not having children. In addition, training should cover gender bias issues seen in evaluations (e.g., a man is assertive, but a woman is aggressive; a man succeeds in his job because of skill, but a woman who’s successful is lucky).
- Consider amending your policy against discrimination to prohibit family responsiblity discrimination. That will help you set conduct standards and may significantly reduce damage awards if your company is sued. Your policy should define FRD and include a zero-tolerance statement.
- Lastly, your employment attorney should conduct an FRD compliance review of your personnel policies and practices. Common problem areas include:
- attendance policies that prohibit time off for new employees;
- alternative work schedule policies that are available only to mothers;
- denying part-time work to mothers but allowing men to take time off regularly to play golf or coach Little League;
- leave policies and forms that don’t comport with Family and Medical Leave Act (FMLA) requirements;
- compensation practices that result in paying part-time workers a lower effective wage rate than full-time workers; and
- lack of written promotion criteria or promotion criteria that allow too much consideration of factors that can be gender-based (such as confidence, interpersonal skills, and leadership qualities).
Basic Training for Supervisors, easy-to-read guides on employment law, including discrimination
FRD claims resonate well with juries. Denying an employee leave to care for an ill child or penalizing a mother who has attempted to balance her family care and workplace responsibilities is offensive to most jurors. If you fail to evaluate your policies and practices, you could find yourself facing an unsympathetic jury in a piece of nasty family care litigation.
About: North Dakota Employment Law Letter:|
Excerpted from North Dakota Employment Law Letter and written by attorneys at Vogel Law Firm. NORTH DAKOTA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. For further information about the content of this article, please contact the attorneys at Vogel Law Firm.