Family Responsibility Discrimination Comes to the Forefront
By: Marc G. Tarlow
Family Responsibility Discrimination (“FRD”), or discrimination by which employees are treated worse than other employees because of caregiving responsibilities to children, spouses or parents, is coming to the forefront of potential employer liability. Not only does this type of discrimination implicate a variety of statutes, but employees are prevailing in lawsuits with alarming frequency. With the number of suits alleging FRD increasing, and the ratio of employee success greater than in all other employment litigation (with the exception of overtime/minimum wage suits), FRD should be taken seriously when contemplating employment decisions.
At its most basic level, legitimate FRD claims often stem from a perception among some employers that employees with caregiving responsibilities will not be as reliable or perform their jobs as well as employees without such responsibilities. Statutory support for FRD claims can be found in the discrimination prohibitions under Title VII of the Civil Rights Act (“Title VII”); the Family and Medical Leave Act (“FMLA”); and the Americans with Disabilities Act (“ADA”). The interplay of these statutes form a kind of legal swamp comparable to the intersection of FMLA, ADA and Workers’ Compensation law, traditionally known as the “Bermuda Triangle” of employment liability. Because Title VII, FMLA, ADA and their state law equivalents are not inherently consistent, and often do not directly address FRD, each case requires careful analysis. Problems in this area are not amenable to a cookbook approach to resolution.
The U.S. Equal Employment Opportunity Commission (“EEOC”) has provided significant input on FRD issues under its May, 2007 Enforcement Guidance, which can be accessed at http://eeoc.gov/policy/docs/caregiving.html. The introduction notes that while a Title VII analysis will more often apply to women, men may also be subjected to negative stereotypes in this area. Moreover, the EEOC discusses instances in which FRD could take the form of racial discrimination.
Importantly, the EEOC’s Enforcement Guidance explains that FRD claims will not be analyzed under traditional disparate treatment analysis: for example, even if the number of females subject to a reduction in force is not disproportionate, a probable cause finding of FRD could result where only females with family responsibilities are disproportionately affected. The Enforcement Guidance indicates various markers of FRD that the EEOC will look for when investigating a charge. Employers should at least be aware of those markers and also be cognizant of the application of basic harassment principals in the context of FRD.
The ADA has its own somewhat surprising application under its often ignored association clause, which provides protection for employees with a relationship or association to any person with a disability, including a person who is not a relative of the employee. Of the three federal statutes discussed here, the FMLA ought to be the clearest inasmuch as the statute on its face is intended to provide protection to caregivers of other family members. Accordingly, human resource professionals are normally sensitive to these issues. The danger here lies in failing to consider Title VII and ADA when FRD issues arise, for example, where an employer with no responsibilities under FMLA has less obvious, but significant potential liability, under Title VII, ADA or state law.
The risks in ignoring FRD have proven very real, as employee suits have been unusually successful in terms of both winning percentages and monetary recoveries. Several multi-million dollar jury awards have been reported, including one for a mother denied a promotion and a father fired for taking family leave. Although an extreme award of $25 million has been reported, of particular concern is the fact that the average award in successful FRD suits is $100,000.
As noted, successful outcomes for employees are common in FRD cases. East coast employees have been successful in approximately 50 percent of the cases filed, which is a far higher success rate than other equal employment law cases. Other geographic areas are experiencing employee success ratios of 30 to 40 percent, still higher than other types of employment suits. With such potential liability, employers need to be mindful to avoid FRD, or face potentially damaging consequences.