Hunton Employment & Labor Perspectives

Think you are doing your pregnant employee a favor by taking her off a big account to give her some time “for herself”?  Think again!  You may just be opening yourself up for a lawsuit.

Most employers have never heard of Family Responsibilities Discrimination (“FRD”).  FRD is an umbrella term for workplace discrimination based on stereotypes about how employees with family caregiving responsibilities will or should act.  For example, an employer may assume that a new mother will not be as committed to her career or as reliable as she was before she had a baby.  Or an employer might believe that a mother “should” be home with her children and may refuse to give her assignments that require travel or late hours. The discrimination arises because the employer’s actions are based on stereotypical beliefs, rather than on the individual employee’s performance or own desires.  And family caregiving is not just limited to childcare.  In fact, an increasing proportion of caregiving is devoted to the elderly and disabled. As with childcare, women are disproportionately responsible for caring for their relatives, including parents, spouses, and other relatives.

The First Circuit Court of Appeals recently ruled on an FRD case, holding that “an employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.”  Chadwick v. Wellpoint, Inc., 561 F.3d 38, 45 (1st Cir. 2009).

According to a report released by the Center for WorkLife Law in February 2010, FRD litigation has increased 400 percent in the last ten years.  Joan C. Williams, a professor at the University of California's Hastings College of the Law and founding director of the Center for WorkLife Law, noted:

“Our database of family responsibilities discrimination suits contains 2,100 cases…. These cases have a 50 percent success rate. Let me say that again: a 50 percent success rate. That is really high. We code employers defeated at summary judgment as success and I think that's fair. The average verdict is over $570,000. There are 21 verdicts over $1 million and four over $10 million. So this is serious business.”

Two-thirds of the 2,100 lawsuits related to pregnancy and maternity leave. Nearly ten percent of the cases concerned elder care, while the rest involved care for sick children, care for ill spouses, time off for newborn care by fathers or adoptive parents, and care for a family member who has a disability. Most of the lawsuits were filed by women, while only twelve percent were filed by men.  Cases where employees achieved favorable verdicts include:

• Selecting an employee for layoff because she was pregnant.
• Denying a promotion to a female employee because she was the mother of young children.
• Firing a male employee who was on approved leave to care for a foster child.
• Instituting production quotas that could not be met by a male employee on intermittent leave to care for his seriously ill parents, and then firing him for not meeting the quotas.

The report also identifies and highlights three factual patterns of which employers should be aware:

• New Supervisor Syndrome:  In some instances, employees with family care obligations were performing well and balancing family and work activities until their supervisor changed. The new supervisors often cancelled flexible work arrangements, changed employees’ shifts, or imposed new productivity requirements. On occasion, comments made by the new supervisors indicated that they were intentionally taking these actions to push family caregivers out.
• Second Child Bias:  In other cases, mothers reported little or no discrimination until they become pregnant with a second child or a multiple birth. Once the supervisor became aware that a female employee was having more than one child, he or she often took preemptive personnel action, apparently based on the assumption that the employee would no longer be sufficiently committed to work because of her additional family responsibilities.
• The Elder Care Effect:  In a growing number of cases, employees are discriminated against because they take time off to care for their elderly parents. As in second child bias cases, supervisors in elder care cases often act preemptively, seemingly based on the assumption that the employees’ commitment to work will be affected.

Employers can protect themselves against these situations and FRD lawsuits through supervisor training and sound legal advice.