Employers take notice, according to a recent 2016 study released by the University of California, Hastings’ Center for WorkLife Law, employee lawsuits alleging family responsibility discrimination (FRD) are on a dramatic rise.  More importantly, employees are winning these cases.  Over the past decade, the study detailed that FRD increased by 269% resulting in nearly $500 million paid out in verdicts and settlements.  If the case goes to trial, employees win 67% of the time, a far higher rate than other employment cases, and employees prevail in 52% of all cases that are filed.  So what exactly is family responsibility discrimination?  

FRD, also called caregiver discrimination, is employment discrimination against workers based on their family caregiving responsibilities.  Pregnant women, mothers and fathers of young children, and employees with aging parents or sick spouses or partners are often the demographic that may encounter family responsibilities discrimination.  They may be rejected for hire, passed over for promotion, demoted, harassed, or terminated — despite good performance — because their employers make personnel decisions based on stereotypical notions of how the employee will or should act given their family responsibilities.

UC Hastings College of the Law provides the following examples of what FRD looks like in the workplace:

·        Firing or demoting employees when they become pregnant;

·        Passing over more qualified parents for hire or promotion in favor of less qualified workers without children;

·        Firing employees without valid business reasons when they return from maternity or paternity leave;

·        Denying flexibility to employees who want it for child care reasons, while allowing flexibility to employees for non-family reasons (e.g., to participate on a sports team);

·        Firing employees whose spouses or elderly parents become disabled for fear of increased absenteeism or higher health insurance premiums; and

·        Fabricating work infractions or performance deficiencies to justify firing employees with family responsibilities.

According to the study, there are four areas of discrimination cases increasing at particularly rapid rates:

·        Eldercare (increasing a staggering 650% in the last decade)

·        Pregnancy accommodation cases (increasing 315%)

·        Denials of accommodations for, or discrimination against, employees who were breastfeeding or needed to express milk (increased by 800%)

·        Cases related to association with an individual who has a disability (400%)

While there is no single federal law that provides protections from FRD, there are a number of existing laws that together provide protections for caregivers.  These laws include:

·        Family Medical Leave Act (FMLA) – which protects men and women who need to leave to care for a child or a family member.

·        Americans with Disabilities Act (ADA) – prevents discrimination against those who provide care to disabled family members.

·        Title VII of the Civil Rights Act – prevents discrimination on the basis of any sex stereotype.

·        Age Discrimination in Employment Act (ADEA) – protects workers over 40 and can apply to those with caregiver responsibilities.

·        Pregnancy Discrimination Act (PDA) – the PDA provides protections to women who are pregnant, on maternity leave or because a woman might get pregnant in the future.

Currently there are four states (Connecticut, Alaska, New Jersey, Oregon) and the District of Columbia that have enacted laws providing explicit protections to family caregivers that go beyond federal laws.  In addition to states with FRD protections, there are at least 67 localities in 22 states, including Michigan, that have laws that prohibit discrimination against employees with certain family caregiving responsibilities. Those localities in Michigan include: Albion, Ann Arbor, Shelby, Wayne County, and Ypsilanti.

With the aging of the population and the increase in the number of households where all adults in the home work, pressures are increasing on employees as there is no one at home to handle caregiver responsibilities.  Employers should consider ways to provide workplace flexibility.  Develop and provide education and training to supervisors and consider offering child and eldercare support, resources, and referral services as some best practices to help remove barriers for employees with caregiver responsibilities.

Sources: Chicago Tribune 5/21/2016, Lexology 5/27/2016; AARP Protecting Family Caregivers from Employment Discrimination