Beyond Sexual Harassment: EEOC Issues Guidance on Family Responsibility Discrimination

The workplace is a whole lot different than it was just a few decades ago. There are more double income families – not necessarily by choice, but often for survival. More Americans are taking on elder care responsibilities. More men are taking time off to care for children, and using employer policies once “reserved” for females. And without a doubt there are more women (and mothers) in the workforce today. 

Along with these shifts,  we’ve seen the expression of some powerful negative stereotypes and old-school cultural norms, which tend to butt heads with the needs and realities of the contemporary American workforce.

Not surprisingly, a new employment law trend has emerged – Family Responsibility Discrimination.  FRD has found its way into mainstream discrimination discussions, and is an important new topic to cover in discrimination and harassment training.  Most significantly, the EEOC issued guidance on FRD in late May of 2007. (See EEOC Guidance on FRD).  The EEOC didn’t create a new cause of action or expand existing statues – but its guidance has brought attention and legitimacy to this issue.

What Is FRD?

FRD is basically discrimination against employees because of their caregiving responsibilities at home. The term is broad enough to include people who care for children, and those who care for parents. It includes both men and women, and employees of all ages, education levels, and protected categories.

Family responsibility discrimination cases are brought under a variety of different statutes such as Title VII, the Family & Medical Leave Act (FMLA), and the Pregnancy Discrimination Act.

And claims arise under a wide variety of circumstances, but generally involve an employment decision based on an employee’s real or perceived family responsibilities, or stereotypes about motherhood or masculinity. Claims are typically classified as sex or gender discrimination claims.

FRD claims also arise when an employee is discriminated or retaliated against for taking family leave under FMLA or similar state statutes. (Check out the EEOC Guidance on FRD for specific examples).

Employers Should Take Note. FRD Cases Are On The Rise.

The number of FRD cases is on the rise. The Hasting College of Law Worklife Center has been tracking FRD cases for decades and reports that claims have risen from 97 cases in 1996 to 481 in 2005.  During a period when discrimination claims overall have been dropping, FRD cases have increased at an astonishing rate of 400%. (See HRhero.com article Family Responsibility Discrimination).

And plaintiffs win these cases 50% of the time – a much higher rate than for other forms of employment discrimination litigation. The issues tend to resonate well with jurors. And the verdicts are big. For a summary of some of the larger and more notable recent cases check out this recent National Law Journal article at Law.com on FRD.

Training is Key

Conduct giving rise to FRD claims is often based on attitudes and personal beliefs. Your employees often don’t understand that it’s not okay to express negative feelings about motherhood and family care responsibilities. Off-hand statements and snap judgments based on stereotypes are the bread and butter of these claims.  

The most critical first step for employers is to raise awareness in their workplace about conduct that can result in FRD claims.  Your training need not deal exclusively with FRD issues, but EEO and harassment training should teach managers:

• About the impact of stereotypes in the workplace, and inappropriate comments relating to family responsibilities.

• How to interpret and apply policies in a fair and consistent manner, without regard to gender or family responsibilities.

• To base employment decisions on objective performance and job criteria, not stereotypes and assumptions.

• How to spot and respond effectively to FRD claims.  Managers in particular need to avoid discounting a claim, or making offensive statements while speaking with an employee about an FRD issue.

FRD is an emerging trend that all organizations should watch. In today’s marketplace, being a truly family-friendly workplace often makes the difference for prospective candidates, and it has a major impact on employee retention.  Having “family friendly” policies is not enough. You need to establish a culture that supports and embraces the values behind the policies.