The number of cases alleging family responsibilities discrimination (FRD) has increased 269% over the last decade, resulting in nearly $500 million paid out in verdicts and settlements, according to a report issued by the Center for Worklife Law at the University of California’s Hastings College of Law. What is becoming increasingly clear today is that employers need to understand the employment practices ramifications before denying employees the ability to take time off to care for a family member, or they could end up in litigation involving allegations of discrimination.
FRD cases can result from a number of issues, including treating employees with caregiving responsibilities less favorably than other employees due to unexamined assumptions that their family obligations may mean that they are not committed to their jobs. Employees may be criticized or disciplined for taking personal days while non-caregiving employees are not. Rules may also be applied unequally to working caregivers, such as when working caregivers are required to make up missed hours while non-caregivers are not.
With very few exceptions, most federal and state statutes do not expressly prohibit family responsibilities discrimination. That is, there are no laws that protect working caregivers of older adults or people with family responsibilities as a specific group or class from discrimination. Rather, these types of claims in the workplace have been framed from other legal theories in federal and state law—for example, as sex discrimination, discrimination based on association with a person with a disability, or a violation of state or federal family and medical leave laws. Examples of actual FRD cases have included an employee who was fired when he asked for leave to care for his chronically ill father; another employee was terminated when he refused to take his wife off of the employer’s insurance plan after being told that his employer had already “paid enough” for his ailing wife; and a worker was denied leave when her employer asserted that it was not her responsibility to care for her ailing mother as long as the father is still living.
As more individuals during their career are being called upon to provide care to children, grandchildren, spouses and parents, employees will increasingly be looking for workplace flexibility to meet their responsibilities. To help employers navigate this area, the Equal Employment Opportunity Commission (EEOC) in 2007 provided a list of best practices that still hold up today as strong measures to follow:
- Train managers about the legal obligations to workers with caregiving responsibilities.
- Develop, disseminate and enforce a strong equal employment opportunity policy that defines relevant terms and describes and prohibits common stereotypes and biases against caregivers.
- Establish work-life balance policies and make certain that managers at all levels are aware of and comply with them.
- Respond to complaints of discrimination efficiently and effectively and, above all, protect employees from retaliation.
- Monitor compensation practices and performance appraisal systems to avoid inequity.
- Encourage and consider requests for flexible work arrangements that include telecommuting and flexible or reduced hours.
- Provide reasonable amounts of paid sick and personal time.
Adhering to these suggestions and the others contained in the EEOC guidance will not only help to protect companies from legal risk, it will also make organizations the employer of choice. RPS provides employment practices liability insurance for diverse companies and can assist you in securing coverage.