Tracey Lust, a highly-regarded sales representative, sued her employer in January 2002 for gender discrimination after she was not promoted to a position that would have required her to relocate her family. Her supervisor admitted 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.” A federal jury awarded Ms. Lust $1.1 million.
Ms. Lust’s claim illustrates a discrimination theory that has received increasing attention over the past decade: family responsibility discrimination (“FRD”). FRD describes claims by employees for discrimination because of caregiving responsibilities outside of work. In some cases, FRD is gender discrimination where, based on stereotyping, employees are treated differently because of caregiving responsibilities for children. In other cases, FRD is disability discrimination where employees are treated differently because of caregiving responsibilities for disabled relatives. In still others, FRD includes the denial of leave to employees seeking time to care for an aging or ill parent. Regardless of type, the number of FRD claims against employers has grown at a remarkable rate. According to a 2010 report, claims of FRD against employers have grown by 400% in the last decade.
In 2007, the Equal Employment Opportunity Commission (“EEOC”) held hearings to examine work-life balance issues and released Enforcement Guidelines to address FRD. While the EEOC noted the Enforcement Guidelines did not create a new protected category, the EEOC advised employers “to adopt best practices to make it easier for all workers, whether male or female, to balance work and personal responsibilities.” The Enforcement Guidelines also outlined examples where FRD claims might be established. A few notable examples include:
- Refusing to promote mothers based on the assumption that 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.
- 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 of employees in FRD cases. According to the 2010 study noted above, employees have prevailed in over 50 percent of FRD cases, with a majority of jury verdicts exceeding $500,000. 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.
Despite these notable statistics, FRD is nothing new. FRD is simply the newest label for claims based on existing law. Nonetheless, 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 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. Training should include examples of FRD to assist in understanding these claims and help supervisors in identifying potential FRD issues with current employees. Supervisors should also 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 about an employee’s commitment to their job relative to family obligations.
Third, employers should implement procedures to investigate and address allegations of FRD. As with policies, some employers may want to add to existing procedures for allegations of 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 legal counsel is always advisable during this process.