April 2015

Figuring Out Family Responsibilities Discrimination

Related Practices

Attorneys & Professionals

Monica Oathout, a partner in the Vorys Houston office and a member of the labor and employment group, and Jim Barnish, an associate in the Houston office and a member of the litigation group, co-authored an article for Law360 titled “Figuring Out Family Responsibilities Discrimination.”  The full text of the article is included below.

Figuring Out Family Responsibilities Discrimination

Birth rates in the U.S. are holding steady while life expectancy rose to 78.8 years, a record high. More parents are moving in with their children and the trend is expected to continue as people live longer and require more care as they age. At the same time, the number of families with two working parents has increased by nearly 20 percent in the past few decades.

As a result, both families and employers are struggling with the effect family responsibilities have on the workplace. These struggles relate to real issues, such as rearranging work schedules, decreasing hours worked (and wages or salaries), or taking unpaid leaves of absence in order to manage commitments to both work and family. Additionally, there are implied issues, such as fighting against gender bias and stereotypes that compromise career paths. Due to the challenges these issues present, more employers find themselves defending against claims, by men and women, alleging family responsibilities discrimination.

FRD generally occurs when employees are discriminated against based on their responsibilities to their families, such as providing care to children, aging parents or people with disabilities. The discrimination can occur in a variety of circumstances and it affects both genders. Examples include: a young married woman who is denied employment due to a fear of her soon becoming pregnant; a parent of a young child who is denied a promotion due to concerns over time off needed to raise the child and an employee who is terminated after requesting flexible work hours to care for a sick parent.

Why Should Employers Be Concerned?

While not directly prohibited by federal law, employers may face liability because:

What Can Employers Do to Minimize Risk?

Most children and incapacitated adults depend exclusively on family and friends for their care. Given that balancing work and family commitments is not a dilemma that will be solved soon, it is likely FRD claims will continue to increase in the coming years. An employer’s awareness of the issue and implementation of these tips may lessen any potential exposure:

Review Policies

Employers should review their handbooks and policies to ensure all caregivers and noncaregivers are treated consistently. For example, all leave and scheduling policies should be drafted so caregivers of both genders are treated the same. Similarly, all hiring, promotion and pay policies should be reviewed to make sure caregivers are given equal treatment. Further, adoption of an anti-discrimination policy that specifically identifies family responsibilities should be considered. Such a policy demonstrates the company’s commitment to equality and would be useful in defending against punitive damages, should a lawsuit arise.

Train People Well

Employers should provide their employees with FRD training as part of its discrimination training. Most cases arise from an atmosphere created by managers and supervisors who have outdated assumptions or stereotypes about how family responsibilities affect an employee. Employers should train their employees on common biases, what conduct is prohibited and the avoidance of decisions based on stereotypes. The key is to train all employees “to leave their personal opinions on the ‘ideal family’ at home,” says Professor Williams. Further, any training should stress that personnel actions have to be based on legitimate business needs and individual performance, not stereotypes and biases.

Monitor Policies in Practice

In addition to implementing proper policies and training, employers should ensure their policies are actually followed. For example, there are numerous cases where an employer offers family leave in its policies. However, in practice, employees are discouraged from using it by other employees. This could potentially lead to FRD claims.

Handle Change Carefully

One common complaint in a large number of FRD claims is a difference in treatment after a change in management. Often this is because new managers or supervisors may alter an employee’s schedule or work responsibilities. An issue arises when an employee feels she is being targeted due to her family responsibilities or her new supervisor’s stereotypes about employees with family responsibilities. When implementing any personnel changes, employers should be sure that managers and supervisors are instructed to treat all employees equally and to make decisions based on actual circumstances, not stereotypes, to avoid liability.

Provide Flexibility

Employers may also want to consider introducing scheduling flexibility in the form of telecommuting and reduced or adjusted schedules. These types of scheduling tweaks can both reduce the stress of family responsibilities on the workplace and increase productivity. Without flexible scheduling, many employees are forced to miss work all together due to family commitments. A flexible schedule allows an employee to address their responsibilities and complete their work. Additionally, many employers may also find it reduces their operating costs.

Treat Claims Seriously

Employers should set a procedure to receive and investigate claims involving FRD. Each claim should be investigated timely.

Know Your Jurisdiction

Some municipalities and states have stepped in to fill the gaps in federal law. Five states and more than 60 municipalities have enacted some type of law that concerns family responsibility issues. These statutes vary in who is protected and what acts are prohibited. Additionally, federal law in this area continues to evolve. These local, state and federal laws can create a complicated legal environment for employers. As such, it is important both employers and attorneys remain proactive and review any changes in the law carefully.