Tracey Lust, a highly regarded sales representative, sued her employer for gender discrimination after she was not promoted to a position that would have required her to relocate her family. Her supervisor admitted that he did not recommend her for promotion “because she had children and he didn’t think she’d want to relocate her family, although she hadn’t told him that.”1 A federal jury awarded Ms. Lust $1.1 million in compensatory and punitive damages.
Ms. Lust’s claim illustrates the latest workplace discrimination theory: family responsibility discrimination (“FRD”). FRD is a multi-faceted—and therefore troubling—term that describes claims by employees for discrimination because of their caregiving responsibilities outside of the workplace. In some cases, FRD is simply a form of gender discrimination where, based on gender stereotyping, employees are treated differently because of their caregiving responsibilities for children. In other cases, FRD is a form of disability discrimination where employees are treated differently because of their caregiving responsibilities for disabled relatives. In still others, FRD includes the denial of leave to an employee seekingtime to care for an aging or ill parent.
Regardless of type, the number of claims of FRD filed against employers has grown at a remarkable rate. According to a July 2006 study from the UC Hastings College of the Law, claims of FRD against employers have grown by 400% in the last decade.2 The popular press has picked up on FRD, and the public has taken notice. Now, the EEOC has weighed in.
EEOC Enforcement Guidelines
On April 17, 2007, the EEOC held hearings to examine work-life balance issues and their relationship with federal antidiscrimination laws. On May 23, 2007, the EEOC released new Enforcement Guidelines to address circumstances that may lead to FRD claims, or the “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.”3 While the EEOC is quick to point out that the Enforcement Guidelines do not create a new protected category, “there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment” under Title VII or the ADA.4 Moreover, the FMLA, Pregnancy Discrimination Act, or state and local laws may afford employees various protections for family responsibilities. Accordingly, the EEOC advises employers “to adopt best practices to make it easier for all workers, whether male or female, to balance work and personal responsibilities.”5
As the EEOC acknowledges, family responsibilities do not constitute a protected category under federal employment laws. As a result, employees asserting FRD claims based on Title VII or the ADA, for example, must demonstrate that the FRD stems from underlying gender or disability stereotypes.
The breadth of FRD claims is staggering, however, with some commentators noting 17 different statutory theories under which FRD claims have been pursued by employees. 6The EEOC’s Enforcement Guidelines outline twenty different examples where FRD claims might be established.
A few notable examples include:
Refusing to promote mothers based on the assumption that their family responsibilities will prevent them from working as hard as men or women without children.
Refusing to hire parents with disabled children based on the assumption that disabled children will require care that will take them away from the workplace.
Denying fathers leave to care for a newborn child where such leave is granted to mothers.
Reassigning job duties from a new mother to a man or woman without children, even where the employer does so out of a benevolent concern for the new mother’s ability to spend time with her child or children.
Perhaps most alarming for employers is the success rate for employees in FRD cases. According to the UC Hastings study, employees have prevailed in over 50 percent of FRD cases with a majority of jury verdicts exceeding $100,000.7 Because small and local businesses make up the largest portion of companies sued for FRD over the past decade, such verdicts can be devastating for employers.8
Preventing FRD Claims
In many respects, FRD is nothing new. FRD is simply the newest label for claims based on existing law. Nonetheless, with the increase in claims, the EEOC’s new focus, and the success rates for employees in FRD cases, employers must recognize the potential liability and take steps to prevent and address FRD claims.
First, employers should examine existing policies and practices to determine whether they adequately address FRD. If not, employers should consider revising those policies and practices. Some employers may simply revise existing policies, while other employers may need to create and implement stand-alone policies to address FRD.
Second, employers should include discussions of FRD in employee training, especially with supervisors. While there is no discrete protected category, supervisors need to understand that existing categories may be sufficient to establish claims of FRD. Training should include examples of FRD to assist in understanding this nuanced claim and help supervisors in identifying potential FRD issues with current employees and practices. Supervisors should be instructed to avoid comments based on stereotypes that may lead to FRD claims—especially comments regarding what they may personally believe about the appropriate roles of mothers and fathers in child-rearing. Supervisors should also be reminded to evaluate each employee on actual performance, rather than assumptions regarding an employee’s commitment to their job relative to family obligations.
Third, employers should implement procedures to investigate and address allegations of FRD in the workplace. As with policies, some employers may want to add to existing procedures for allegations of workplace discrimination or harassment. Others may want to create distinct procedures for FRD claims, based on their unique circumstances. As with modifying policies to address FRD, working with counsel is always advisable during this process.
1 Lust v. Sealy, 383 F.3d 580, 583 (7th Cir. 2004).
2 Mary C. Still, Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination against Workers with Family Responsibilities, UC HASTINGS COLLEGE OF THE LAW CENTER FOR WORKLIFE LAW, at 2 (July 2006), available at http://www.uchastings.edu/site_files/WLL/FRDreport.pdf.
3 Naomi C. Earp, Enforcement Guidance; Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, EEOC TITLE VII/EPA/ADEA OFFICE OF LEGAL COUNSEL (May 23, 2007), available at http://www.eeoc.gov/policy/docs/caregiving.html.
4 Id. at Preface.
5 Id. at Part I.B.
6 Zachary D. Fasman, Meeting of April 17, 2007 – Perspectives on Work/Family Balance and the Federal Equal Employment Opportunity Laws: Remarks of Zachary D. Fasman, COMMISSION MEETINGS (Apr. 17, 2007), available at http://www.eeoc.gov/abouteeoc/meetings/4-17-07/fasman.html
7 Still, supra note 2, at 13.
8 Id. at 12.