Business Not As Usual

The majority of employers know that employment discrimination based on gender is illegal. Many employers, however, are unaware that discrimination based on stereotypical views of women as 'mothers' and men as 'fathers' may also be actionable. Although caregivers are not a protected class under federal anti-discrimination statutes, courts are recognizing with increased frequency that inappropriate considerations and decisions about 'caregivers' might constitute unlawful treatment under various federal laws including Title VII of the Civil Rights Act ('Title VII'), the Americans with Disabilities Act ('ADA'), the Family and Medical Leave Act ('FMLA'), and state and local laws.

This two-part article explores the dramatic increase in cases alleging caregiver discrimination, the most recent cases and guidelines involving this area of the law, and how employers can best protect themselves given the explosion of family responsibility discrimination ('FRD') cases and the open issues that could further impact the number of FRD filings.

Family Responsibility Discrimination

According to a recent study by Mary C. Still entitled 'Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination Against Workers With Family Responsibilities, Center for Work Life Law,' the number of cases alleging FRD has increased by nearly 400% over the last decade. Although this increase is notable in and of itself, it is even more staggering when compared with the 20% decrease in general employment discrimination cases. Even the United States Supreme Court went out of its way to acknowledge stereotypes regarding work and family. Specifically, Justice Rehnquist, in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), a case concerning the interplay between the Eleventh Amendment and the FMLA, stated that 'the fault line between work and family [is] precisely where sex-based overgeneralization has been and remains strongest ' Stereotypes about women's domestic responsibilities are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination.' This escalation forces the question: why?

Theories Regarding Growth in FRD Cases

There are many theories posited for this rapid increase in FRD cases. The most commonly cited explanations, according to studies by Ms. Still, Peggie R. Smith, and the U.S. Department of Labor, are: 1) the increase of women in the workplace; 2) the increase in mothers who work outside of the home; 3) the additional need for elderly care due to the aging baby boomer generation; 4) the increase of employee awareness about the existence of FRD claims; 5) the spread of court recognition regarding FRD claims; and 6) the development of employee intolerance for alleged workplace inequities. Regardless of the reason, this trend is worthy of attention.

What Is FRD?

FRD claims arise in situations where preconceived ideas of gender and parenthood affect an employment decision. Additionally, FRD claims may be based on facially neutral employment policies that treat one gender more favorably than another. Examples of unlawful policies based on gender and parent stereotypes include a 'no-marriage' requirement for women but not for men, and a refusal to accept applications from mothers with young children while accepting applications from men with young children.

Part Two of this article will discuss the significant cases; the EEOC Guidelines and steps employers should take.

Carolyn Plump is a partner in the Labor and Employment Law Practice Group of Philadelphia's Mitts Milavec, LLC.

The majority of employers know that employment discrimination based on gender is illegal. Many employers, however, are unaware that discrimination based on stereotypical views of women as 'mothers' and men as 'fathers' may also be actionable. Although caregivers are not a protected class under federal anti-discrimination statutes, courts are recognizing with increased frequency that inappropriate considerations and decisions about 'caregivers' might constitute unlawful treatment under various federal laws including Title VII of the Civil Rights Act ('Title VII'), the Americans with Disabilities Act ('ADA'), the Family and Medical Leave Act ('FMLA'), and state and local laws.

This two-part article explores the dramatic increase in cases alleging caregiver discrimination, the most recent cases and guidelines involving this area of the law, and how employers can best protect themselves given the explosion of family responsibility discrimination ('FRD') cases and the open issues that could further impact the number of FRD filings.

Family Responsibility Discrimination

According to a recent study by Mary C. Still entitled 'Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination Against Workers With Family Responsibilities, Center for Work Life Law,' the number of cases alleging FRD has increased by nearly 400% over the last decade. Although this increase is notable in and of itself, it is even more staggering when compared with the 20% decrease in general employment discrimination cases. Even the United States Supreme Court went out of its way to acknowledge stereotypes regarding work and family. Specifically, Justice Rehnquist, in Nevada Department of Human Resources v. Hibbs , 538 U.S. 721 (2003), a case concerning the interplay between the Eleventh Amendment and the FMLA, stated that 'the fault line between work and family [is] precisely where sex-based overgeneralization has been and remains strongest ' Stereotypes about women's domestic responsibilities are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination.' This escalation forces the question: why?

Theories Regarding Growth in FRD Cases

There are many theories posited for this rapid increase in FRD cases. The most commonly cited explanations, according to studies by Ms. Still, Peggie R. Smith, and the U.S. Department of Labor, are: 1) the increase of women in the workplace; 2) the increase in mothers who work outside of the home; 3) the additional need for elderly care due to the aging baby boomer generation; 4) the increase of employee awareness about the existence of FRD claims; 5) the spread of court recognition regarding FRD claims; and 6) the development of employee intolerance for alleged workplace inequities. Regardless of the reason, this trend is worthy of attention.

What Is FRD?

FRD claims arise in situations where preconceived ideas of gender and parenthood affect an employment decision. Additionally, FRD claims may be based on facially neutral employment policies that treat one gender more favorably than another. Examples of unlawful policies based on gender and parent stereotypes include a 'no-marriage' requirement for women but not for men, and a refusal to accept applications from mothers with young children while accepting applications from men with young children.

Part Two of this article will discuss the significant cases; the EEOC Guidelines and steps employers should take.

Carolyn Plump is a partner in the Labor and Employment Law Practice Group of Philadelphia's Mitts Milavec, LLC.