Family Responsibility Discrimination: Recognizing Unlawful Discrimination against Family Caregivers
By Leah Avey and Tim Eisel

It also includes taking negative employment actions based on gender stereotypes, including assumptions about how workers will or should act in the workplace because of their family caregiving responsibilities.2

What is Family Responsibility Discrimination or FRD?

Put simply, “family responsibility discrimination” is “employment discrimination against workers who have family responsibilities.3 It is a form of gender discrimination in which workers are treated worse at work because of their caregiving responsibility for children, elderly parents or ill relatives.”4

The term is used to describe a wide variety of employer behavior, such as firing pregnant employees because they are pregnant or will take maternity leave, giving promotions to women without children or fathers rather than to more qualified mothers, giving parents work schedules they cannot meet for childcare reasons while giving non-parents flexible schedules, harassing and penalizing workers who take time off to care for aging parents or sick spouses, or fabricating work infractions or performance deficiencies to justify dismissal of employees with family responsibilities.5

FRD Claims Under Federal Statutes

The concept of family responsibility discrimination is not new, but claims of this type of discrimination are becoming increas-ingly more common.6 While family caregivers do not constitute a protected category under federal statutes, there are protections afforded under federal anti-discrimination and family leave acts.7 Many FRD claims are brought under Title VII of the Civil Rights Act of 19648 which prohibits sex discrimination. Title VII applies to claims such as those involving treatment of women with children that is different from treatment of men with children, stereotyping of women as mothers, or denial to male caregivers of leave or benefits available to female caregivers.9

In Lust v. Sealy Inc.,10 a female sales manager brought a sex discrimination claim pursuant to Title VII alleging she was discriminated against when her employer passed her over for a promotion in favor of a male employee. The jury awarded $100,000 in compensatory damages and $1 million in punitive damages (later reduced) after her supervisor admitted he had not considered her for a promotion because she had children, assuming she did not want to relocate her family in spite of her repeated expressions of interest in obtaining a promotion.

Other federal statutes also provide protection against FRD. The Pregnancy Discrimination Act, a 1978 amendment to Title VII,11 prohibits discrimination based on pregnancy, plans to become pregnant and childbirth. The Family and Medical Leave Act of 1993 (FMLA)12 prohibits discrimination or retaliation against employees who have taken FMLA protected leave, and it has been used to protect employees who take leave in connection with the birth or adoption of a child or to care for a seriously ill family member.13

The U.S. Supreme Court was given the opportunity to examine the FMLA in the context of an FRD claim in Nevada Dep’t of Human Res. v. Hibbs.14 A male employee of the state of Nevada claimed his employer violated the FMLA when it terminated him after he used FMLA leave to care for his spouse as she recuperated after a car accident and resulting surgery. The trial court granted summary judgment to the employer on the grounds that the FMLA claim against the state was barred by the 11th Amendment. The U.S. Supreme Court held that state employees may recover monetary damages in federal court in the event of a state’s failure to comply with the FMLA’s family care provisions. In reaching this conclusion, the court recognized the expressed objective of the legislation to minimize “the potential for employment discrimination on the basis of sex by ensuring generally that leave is available ... on a gender-neutral basis.”15 The Supreme Court found that the FMLA was designed to provide a “minimum standard of family leave for all eligible employees, irrespective of gender.”16 It acknowledged the restrictive nature of a cause of action under the FMLA where recoverable damages are strictly defined and measured by actual losses and the accrual period for backpay is limited by the act’s two year statute of limitations (or three years for willful violations).17

Similarly, other federal statutes, such as the Americans with Disabilities Act,18 Equal Pay Act of 196319 and ERISA20 also contain protections against these kinds of discriminatory acts.21

EEOC Guidelines: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities

The EEOC has recognized the growing trend of claims in this area and recently issued new guidelines addressing unlawful disparate treatment of workers with caregiving responsibilities.22 The following is an overview of the guidelines which are intended to illustrate circumstances where stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.

The guidelines do not create a new protected class and do not attempt to address every possible discrimination scenario under all statutes.23 They address several forms of unlawful disparate treatment of caregivers, including 1) sex-based disparate treatment of female caregivers; 2) pregnancy discrimination; 3) discrimination against male caregivers; 4) discrimination against women of color; 5) unlawful caregiver stereotyping under the ADA; and 6) hostile work environments.24

Sex-based disparate treatment of female caregivers

Employment decisions that discriminate against workers with caregiving responsibilities are prohibited by Title VII if they are based on sex or another protected characteristic.25 Such a claim can be proven using any of the types of evidence available in other sex discrimination cases.26 Examples of relevant evidence might include:

• whether an employer asked female applicants, but not male applicants about their family situation, caregiving responsibilities or childcare arrangements;
• whether decision makers or officials made stereotypical or derogatory comments about pregnant workers, working mothers or other female caregivers;
• whether women were subject to less favorable treatment soon after the employer became aware they were pregnant;
• whether less favorable treatment was given to women after they assumed caregiving responsibilities where there was no decline in work performance;
• whether female workers without caregiving responsibilities received more favorable treatment than female caregivers based on stereotypes;
• whether an employer steered or assigned women with caregiving responsibilities to less prestigious or lower paid positions;
• whether male workers with caregiving responsibilities received more favorable treatment than female workers;
• whether statistical evidence shows disparate treatment against pregnant workers or female caregivers.27

Title VII does not prohibit discrimination based solely on parental or other caregiver status, so an employer does not generally violate Title VII’s disparate treatment proscription if, for example, it treats working mothers and working fathers in a similar unfavorable manner as compared to childless workers.28 Yet, a Title VII violation would be shown where an employer treated female workers less favorably than males based merely on an assumption that female workers will assume caregiving responsibilities or that their caregiving responsibilities will interfere with their performance.29

For example, a new mother may be perceived by her employer as being less capable and skilled than the childless female or male employees. The guidelines encourage investigators to watch carefully for changes in an employer’s performance assessment that arise after a female becomes pregnant or an employee assumes caregiving responsibilities.30 These assessments must be supported by specific, objective criteria or otherwise may be seen as a pretext for an adverse employment decision based on stereotypes that female caregivers should not, will not or cannot be committed to their jobs. Such stereotypes are sex-based, and adverse actions based on these stereotypes therefore violate Title VII.31

This is true even for employment decisions based on gender stereotypes made with good intentions and thought by the employer to be in the “best interest” of the employee.32 For example, an employer might assume that a working mother does not want to relocate or would not accept an increase in workload as required by a promotion opportunity and therefore fails to consider the employee for the promotion. Another example might be an employer who projects his own views that a mother should be home with her children onto a female employee and therefore does not provide the employee with meaningful assignments. The guidelines categorize such decisions as “benevolent stereotyping” and note that adverse actions based on sex stereotyping violate Title VII, regardless of the good intentions of the employer.33

Of course, employment decisions based on an employee’s actual work performance, rather than assumptions or stereotypes, do not generally violate Title VII, even if an employee’s unsatisfactory work performance is attributable to caregiving responsibilities.34 For example, consider an employee that returns from maternity leave and begins missing work frequently because of difficulty in obtaining childcare. As a result, she misses several important deadlines and the firm loses an important client. The employee is given a written warning about her performance but her continued childcare difficulties result in further missed deadlines. The firm transfers the employee to a different department where she is excluded from high profile cases and given work with fewer time constraints. Her treatment is comparable to other employees, both male and female, who had similar unsatisfactory performance that did not improve within a reasonable time. The guidelines state this is not a violation of Title VII, as the adverse action was based upon the employee’s actual work performance rather than on assumptions or stereotypes.35

An employer violates Title VII if gender is a “motivating factor” in the adverse employment decision, regardless of whether the employer was also motivated by a legitimate business reason.36 However, if an employer can show it would have taken the same action even absent the discriminatory motive, the employee will not be entitled to reinstatement, back pay or damages.37

Pregnancy discrimination

Reflecting the trend of FRD cases as a whole, the number of pregnancy discrimination complaints filed with the state and federal enforcement agencies has increased over 30 percent between 1992 and 2005.38 Employers can violate Title VII by making assumptions about pregnancy, such as assumptions about commitment of pregnant workers, their ability to perform certain physical tasks or the effect of the pregnancy on job performance.39 The guidelines strongly discourage employers from making pregnancy related inquiries, noting that the EEOC will generally regard a pregnancy-related inquiry as evidence of pregnancy discrimination where the employer subsequently makes an unfavorable job decision affecting a pregnant worker.40 In addition, an employer may not treat a pregnant worker who is temporarily unable to perform some of her job duties because of pregnancy less favorably than workers whose job performance is similarly restricted because of conditions other than pregnancy.41

Discrimination against male caregivers

While working women have generally borne the brunt of gender-based stereotyping, unlawful assumptions about working fathers and other male caregivers have sometimes led employers to deny male employees opportunities that have been provided to working women or to subject men who are primary caregivers to harassment or other disparate treatment.42 For example, an employer can violate Title VII by granting female employees’ requests for leave for childcare purposes while denying similar requests for male employees, or offering part-time or flexible work arrangements for females only.43 While Title VII permits employers to provide women with leave specifically for the time they are incapacitated because of pregnancy, childbirth and related medical conditions, employers may not treat either sex more favorably with respect to other kinds of leave.44 Thus, to avoid a potential Title VII violation, the EEOC encourages employers to carefully distinguish between pregnancy related leave and other forms of leave, ensuring that any leave specifically provided only to women is limited to the period that women are incapacitated by pregnancy and childbirth.45

Discrimination against women of color

Women of color who are caregivers may encounter multiple types of discrimination as when a Latino working mother is subjected to discrimination by a supervisor based on his stereotypical notions about working mothers as well as his hostility toward Latinos generally.46 The guidelines further recognize “intersectional discrimination,” meaning discrimination specifically directed toward women of a particular race or ethnicity, rather than toward all working women, resulting, for example, in less favorable treatment of black working mothers than white working mothers.47

Unlawful Caregiver Stereotyping Under the Americans with Disabilities Act

The ADA prohibits an employer from discriminating against a non-disabled individual because of the individual’s relationship or association with a disabled individual such as a child, spouse or parent.48 Thus, an employer may not treat a worker less favorably based on stereotypical assumptions about the worker’s ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability.49 For example, an employer may not refuse to hire a job applicant whose wife has a disability because the employer assumes the applicant would have to use frequent leave and arrive late due to his caregiving responsibilities to his spouse.50 Interestingly, though, while the ADA requires an employer to provide a reasonable accommodation (which can include part-time or modified work schedules) for qualified individuals with disabilities, an employer is not required to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability.51 Thus, an employee would not be entitled to a modified work schedule as an accommodation to enable the employee to care for a family member with a disability.52

Hostile Work Environment

The same legal standards that apply to other forms of harassment prohibited by the federal statutes also apply to unlawful harassment directed at caregivers or pregnant workers.53 Thus, employers may be liable if workers with caregiving responsibilities are subjected to offensive comments or other harassment because of race, sex (including pregnancy), association with an individual with a disability, or another protected characteristic and the conduct is sufficiently severe or pervasive to create a hostile work environment.54

Retaliation

Employers are prohibited from retaliating against workers for opposing unlawful discrimination, such as by complaining about gender stereotyping, or for participating in the EEOC charge process, either by filing a charge or testifying for a complaining coworker.55 The statutory retaliation provisions protect individuals against any form of retaliation that would be reasonably likely to deter someone from engaging in protected activity.56 The guidelines note that caregivers may be particularly vulnerable to unlawful retaliation because of the challenges they face in balancing work and family responsibilities.57 The Supreme Court has noted that a “schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.”58 Thus, these statutes would prohibit a retaliatory schedule change, elimination of flex-time or part-time scheduling, or any other act that would be reasonably likely to deter a caregiver from engaging in protected activity.59

Disparate Treatment versus Disparate Impact

Workers subject to disparate treatment based on a protected characteristic such as sex, pregnancy or the right to FMLA leave fall within the guidelines and may pursue a remedy under a FRD theory. But what about policies that have disparate impact on individuals involved in family caretaking activities? In a meeting before the EEOC on April 17, 2007,60 policies were identified that disproportionately impact employees who have caregiving responsibilities, but yet do not offend federal anti-discrimination statutes.

One example is an employer’s policy against telecommuting. In an age when the Internet provides access to many services and information from any location, many employees would rather work from home so that they may provide care for their dependent children. However, an employer may have legitimate reasons for prohibiting the telecommuting arrangement, such as avoiding an unsupervised workforce, efficiency concerns or the increased distractions of home versus those at the office. A uniformly applied prohibition on telecommuting, although it may impact those with caregiving responsibilities more directly, is not in violation of law protecting against dis-criminatory employer conduct.61

Another unprotected impact might be felt through an employer’s strict attendance policy. Such a policy might have a disparate impact for those with caregiving responsibilities. For instance, employees may be impacted who need to arrive late after dropping a child off at school or who may care for a disabled individual. Each must still adhere to the attendance policy. Flexible scheduling for parents or a scheduling accommodation for someone associated with a disabled individual is not required under Title VII or the ADA. Although caregivers might be more obviously impacted, again, no protection is afforded when a policy is uniformly administered.62

Some employers pay part-time workers performing the same kind of work a proportionately lower salary than those working full-time. Under a family responsibility theory, part-time workers claim that they should be “paid proportionately to full-time workers and receive equally challenging and interesting assignments.”63 Does the Equal Pay Act guarantee equal pay for equal work, or proportionate pay and equal work for an employee?64 Should a part-time female employee be compared to a part-time male employee under the EPA, or compared to a male employee who performs the same job on a full-time basis? In Lovell v. BBNT Solutions,65 the court held as a question of fact whether a full-time employee was the proper comparator for a plaintiff with a reduced schedule, and that a prima facie case based on the full-time comparator was not precluded. In contrast, the court in Ilhardt v. Sara Lee Corp.66 (Title VII case) found that “full-time employees are simply not similarly situated to part-time employees . . . part-time employees work fewer hours and receive less pay and fewer benefits.”67 Therefore, depending on the facts of the case and the proper comparator, it is not a foregone conclusion that the practice of paying part-time employees less will survive a claim of disparate impact.

Recommendations for Employers

Given the increased attention to these issues and the growing number of caregivers in the marketplace, employers should review their workplace policies and practices to ensure a non-discriminatory work environment. Policies relating to attendance and leave should be reviewed to ensure leave requests are considered on a gender neutral basis. Hiring and promotion criteria should be related to business needs and not based on false assumptions about commitment or productivity. Work assignments should be handed out based on objective criteria and caregivers should be offered the same opportunity as other workers to receive promotions, high profile or meaningful assignments, or specialized training. Performance reviews, bonuses and raises should be based upon clear work objectives and pay policies should be equitable.68

In addition, employers should consider revising their anti-harassment policies to specifically include discrimination directed toward caregivers as prohibited harassment. Harassment training should include programs to assist managers and decision makers in recognizing and preventing FRD in the workplace. It is also important that caregiver harassment complaints be taken seriously and handled in accordance with the employer’s established policies and procedures for handling other types of harassment complaints.

Given the changing demographic of the labor force, employers should consider offering quality, non-stigmatized reduced hours, flexible schedules or part-time positions. Other options might include telecommuting programs or other non-traditional working environments.69 By being proactive in addressing these issues in the workplace, employers can prevent unlawful family responsibilities discrimination in their workplace and avoid the liability that comes along with it.

1. Yaire Lopez v. Bimbo Bakeries USA Inc., (Cal. Super. Ct., San Francisco County) (May 27, 2007).
2. Gender stereotyping is often associated with working mothers and triggered when an employee announces her pregnancy, takes or returns from maternity leave, or requests or adopts a flexible or part time schedule after becoming a mother. Even so, caregiving responsibilities are not limited to childcare and include caring for elderly or sick parents, spouse or other relatives. Also, while females are still responsible for the majority of caregiving, men are increasingly taking a greater role in these responsibilities and thus are vulnerable to the same kinds of discrimination. See Current Law Prohibits Discrimination Based on Family Responsibilities & Gender Stereotyping, Summer 2006, www.worklifelaw.org/pubs/IssueBriefFRD.pdf, at 1-2.; EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, www.eeoc.gov/policy/docs/caregiving.html, at 3 (noting that between 1965 and 2003, the amount of time men spent on childcare nearly tripled, and men spent more than twice as long performing household chores in 2003 as they did in 1965).
3. Work Life Law Center, a Center of UC Hastings College of the Law, www.worklifelaw.org/.
4. Current Law Prohibits Discrimination Based on Family Responsibilities & Gender Stereotyping, supra note 2.
5. www.worklifelaw.org, supra note 3.
6. As of 2005, the number of FRD cases filed in the past decade increased by nearly 400 percent over those filed in the previous decade. Current Law Prohibits Discrimination Based on Family Responsibilities & Gender Stereotyping, supra note 2, at 4.
7. Even without a statute that expressly prohibits FRD, employees are protected by several statutes from discrimination based on caregiving obligations including Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Family and Medical Leave Act, Americans with Disabilities Act, Equal Pay Act and ERISA. Frequently Asked Questions about FRD, www.worklifelaw.org/FRDFAQ.html. See also www.worklifelaw.org/pubs/Model_Policy_for_Employers.pdf at 7 (compiling list of applicable statutes and examples of case law involving claims based on various statutes).
8. 42 U.S.C. § 2000e - 2000e-16 (as amended).
9. Frequently Asked Questions about FRD, www.worklifelaw.org/FRDFAQ.html.
10. 277 F. Supp.2d 973 (W.D. Wis. 2003), aff’d 383 F.3d 580 (7th Cir. 2004).
11. 42 U.S.C.S. § 2000e et seq.
12. 29 U.S.C. §§ 2601 et seq.
13. Frequently Asked Questions about FRD, supra note 9.
14. 538 U.S. 721 (2003).
15. Id. at 740, n.2.
16. Id. at 737.
17. Id. at 740.
18. 42 U.S.C. §§ 12101 et seq.
19. 29 U.S.C. § 206(d).
20. Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq.
21. See also Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 (2d. Cir. 2004) (finding denial of tenure for a female school psychologist violated 42 U.S.C. § 1983 where she had received positive performance reviews until she became a mother and was thereafter subjected to comments by her supervisors such as it was “not possible for [her] to be a good mother and have this job” and they “did not know how she could perform her job with little ones.”).
22. The Guidelines can be found at www.eeoc.gov/policy/docs/caregiving.html.
23. For instance, the Guidelines note that an employer may also have specific obligations toward caregivers under other federal statutes, such as the FMLA or under state or local laws. Id. at 2. It is also important to note that the Guidelines only address intentional disparate treatment discrimination and do not address disparate impact discrimination. Of course, a seemingly neutral policy that has a disparate impact on caregivers may be evidence of sex discrimination. For example, rules that workers cannot use sick days to care for sick family members; restrictions on leave or absences within certain periods of time; compensation structures that reward (or penalize) employees based on the number of hours they work rather than productivity or performance during working hours; and definitions of “full-time” jobs as requiring 50 or more hours per week. See Current Law Prohibits Discrimination Based on Family Responsibilities & Gender Stereotyping, supra, note 2, at 3.
24. Guidelines, supra note 22, at 1-2.
25. Id. at 5.
26. Id. at 4. The Guidelines state that while comparative evidence may be useful, it is not necessary to establish a violation. Rather, cases should be resolved on the totality of the evidence. Id. at n.43.
27. Id. at 5.
28. Id. at 6.
29. Id. at 6.
30. Id. at 11.
31. Id.
32. Id. at 9.
33. Id. at 9-10.
34. Id. at 9.
35. Id. at 9.
36. Id. at 7.
37. Id.
38. Current Law Prohibits Discrimination Based on Family Responsibilities & Gender Stereotyping, supra note 2, at 4 and n. 31.
39. Guidelines, supra note 22, at 12.
40. Id.
41. Id.
42. Id. at 14.
43. Id.
44. Id.
45. Id.
46. Id. at 15.
47. Id.
48. 42 U.S.C. § 12112(b)(4).
49. Guidelines, supra note 22, at 16.
50. Id.
51. Alex B. Long, Employment Law and Work-Life Balance, at 8 (seminar paper citing 42 U.S.C. § 12112(b)(5)) BEST OF OBA/CLE 2006, Oklahoma Bar Assoc. 2006.
52. Id. (citing 29 C.F.R. app. § 1630.9).
53. See Guidelines, supra note 22, at 17.
54. Id.
55. Id. at 18.
56. Id.
57. Id.
58. See id. at 18 (citing Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415 (2006)).
59. Guidelines, supra note 22, at 18.
60. Perspectives on Work/Family Balance and the Federal Equal Employment Opportunity Laws, Meeting of April 17, 2007, Remarks of Zachary D. Fasman, www.eeoc.gov/abouteeoc/meetings/4-17-07/fasman.html.
61. Id.
62. Id.
63. Id.
64. Id. Fasman states that the disparate impact when an employee “does not commit equal time to his work endeavors” is not discriminatory even though the population of part time workers is disproportionately composed of women with childcare responsibilities.
65. 295 F.Supp. 2d 611, 619 (E.D.Va. 2003).
66. 118 F.3d 1151 (7th Cir. 1997).
67. Id. at 1155.
68. www.worklifelaw.org/pubs/Model_Policy_for_Employers.pdf, at 5.
69. www.worklifelaw.org/WorkplaceRedesignFlexibility.html There is substantial evidence that workplace flexibility enhances employee satisfaction and job performance and that employers can thus benefit by adopting such flexible workplace policies by, for example, saving money on retention costs. See Guidelines, supra note 22, at 4.

About The AuthorS

Leah M. Avey is an associate with Whitten, Burrage, Priest, Fulmer, Anderson & Eisel. She graduated with honors from Oklahoma City University School of Law in 2007 and is admitted to the Oklahoma, Western District and Tenth Circuit bars. She currently practices primarily in the area of employment law.

Timothy D. Eisel is a partner with Whitten, Burrage, Priest, Fulmer, Anderson & Eisel. He received his J.D. with honors from the University of Oklahoma College of Law in 1992. He has significant experience litigating employment matters and is a frequent speaker at human resource seminars on a wide variety of topics.

Family Responsibility Discrimination: Recognizing Unlawful Discrimination against Family Caregivers
Published 79 OBJ 1135 (May 10, 2008)