Greg Naylor, Editor
Whitfield & Eddy, P.L.C.

Vol. 14, No. 7
November 2007

LITIGATION

Family responsibilities discrimination: the next frontier for employment claims

A new breed of employment claims is hitting the court system. Family responsibilities discrimination (FRD) claims are being filed with increasing frequency around the country. The statutory foundation for the claims, however, rests on existing federal and state civil rights laws rather than new legislation. Read on to learn more about the new category of claims that arise when employers discriminate against or harass employees because of their family caregiving duties.

Caregiving responsibilities spawn new claims

Neither federal equal employment opportunity laws nor the Iowa Civil Rights Act prohibits discrimination against family caregivers. Still, employee caregivers can become discrimination victims under the federal and state civil rights laws, and FRD claims are becoming increasingly prevalent around the country.

Caregiver claims may arise when an employee becomes a victim of sex, age, disability, or another type of discrimination, purportedly because he was subjected to a less favorable term or condition of employment as a result of the need to care for an ill child or aging parent. The recent rise in FRD claims is at least partially due to the fact that an increasing number of employees are providing care to family members both during and outside of normal work hours.

Gender discrimination

Many of the FRD cases are based on sex discrimination claims under Title VII and the state civil rights laws. In 1964, the federal civil rights legislation was enacted partly to increase the employment opportunities for women, who weren't being given the opportunity to pursue careers outside the home. Because of the civil rights laws' success in providing equal rights to women, their numbers in the workforce have risen dramatically. Consequently, they're facing increased gender-based discrimination related to their caregiving responsibilities as they pursue careers outside the home.

In the 1970s, it was common for employers to quiz female applicants about their family duties, despite civil rights laws requiring equal job opportunities for both genders. Today, employers may be less bold about directly asking female applicants whether they have young children, but statistics tend to show that family caregiving responsibilities are still contributing to gender discrimination claims. Even as women have successfully scaled the corporate ladder, some employers continue to make stereotypical assumptions that those with child-care responsibilities will be unwilling or unable to handle the significant duties required at work, including after-hours assignments.

Also, with the aging of the population, eldercare responsibilities have become a reality for many employees. As a result, discrimination concerns can surface when females are subjected to less favorable treatment if they need to take Family and Medical Leave Act leave or other employer-provided leave to care for infirm parents. Workplace equity issues also can occur when females with child- care or eldercare responsibilities are treated less favorably than single women who don't have family obligations (or are paid less than similarly situated workers who don't have those duties).

Males can be victims, too. Family responsibility issues also can affect male employees who are subjected to differential treatment (compared to similarly situated coworkers) based on their caregiving responsibilities. For example, males who choose to work part-time so they can care for small children may be perceived as less committed than their full-time male counterparts who delegate child-care responsibilities to their spouses. In turn, an increasing number of FRD claims are being filed by male employees who have assumed eldercare duties for infirm parents and may need time off from work to provide the necessary care. Stereotypes that assume caregivers won't (or can't) be committed to their jobs because of their caregiving duties could be based on impermissible gender assumptions that violate state or federal laws.

Some of the gender-based stereotypes that burden males are essentially the opposite of the ones often used to classify females. Specifically, some employers might assume that males are unwilling to perform caregiving responsibilities, just as females may be stereotyped as the only group capable of handling those duties. Also, employers should be careful to avoid denying male employees the opportunity for child-care leave, even as they grant similar leave to female employees. While women are entitled to leave for pregnancy- related disabilities under federal and state laws, males shouldn't be treated less favorably with respect to other types of family leave, including child- care leave.

Disability discrimination

Another prevalent type of FRD can occur when an employee is subjected to discrimination because of his familial relationship or association with a disabled parent, spouse, or child. Employers must steer clear of succumbing to stereotypes that may tend to encourage less favorable treatment of employees based on the perception that they're less likely to handle job responsibilities successfully if they're also caring for a disabled family member. In addition, an employer may not discriminate against a job applicant on the assumption that the new employee would be less devoted to his job if he's also needed to care for a spouse, child, or parent with a disabling condition.

Harassment claims

Harassment problems can arise because of an employee's family responsibilities. If coworkers harass a member of a protected class as a result of her caregiving duties, the employer may be subjected to liability if it knew or reasonably should have known about the conduct. Offensive comments or acts that create a hostile work environment or interfere with the individual's terms and conditions of employment may support a harassment claim.

Ethnicity can play a role in family care responsibilities harassment or discrimination. Studies report that a higher percentage of Asian Americans, Hispanics, and African Americans have parental care responsibilities when compared to white employees. Accordingly, employers must be vigilant to avoid ethnic and national origin harassment and discrimination claims by not treating minority employees less favorably than their white coworkers on family care issues.

What Iowa employers can do

Safeguards against FRD can include flexible work schedules and other programs to assist employees in balancing work and family needs. As a greater percentage of workers assume family care obligations, those of you who are prepared to offer some flexibility will have the greatest success in recruiting and retaining employees who are committed to your organization.

FRD litigation is here to stay, and the number of claims is increasing. As a result, you should take a moment to audit your hiring and employment policies, specifically including your leave policies. If you're truly sensitive to employees' family care needs, you'll successfully recruit, cultivate, and retain loyal workers ― and avoid FRD claims.

You can catch up on the latest court cases involving family responsibilities discrimination in the subscribers' area of www.HRhero.com, the website for Iowa Employment Law Letter. Just log in and use the HR Answer Engine to search for articles from our 50 Employment Law Letters. Need help? Call customer service at (800) 274-6774.

Copyright 2007 M. Lee Smith Publishers LLC

IOWA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual legal problems nor does it provide legal advice. The newsletter provides general information on current developments on Iowa employment issues. Questions about individual legal problems should be addressed to the attorney of your choice.