The Rise in Family Responsibility Discrimination Cases

The Martin Marietta case was not, however, the end of the matter. Rather, it was just the beginning of this trend. As found in Mary C. Still's study, during the 70s, 80s, and early 90s, FRD cases steadily increased. 'Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination Against Workers with Family Responsibilities, Center for WorkLife Law.' Starting in the late 90s, there was a sharp spike in such cases. Some of the most significant cases from the past several years are summarized below in ascending order based on year.

Lovell v. BBNT Solutions, 295 F. Supp. 2d 611 (E.D. Va. 2003)

Ms. Lovell worked as a materials engineer for a technology research and development company. She elected to work a reduced schedule of 30 hours per week, for which she received $77,500 annually. Despite her reduced-hour schedule, she also made herself available on her day off to attend meetings with clients and perform other work. In contrast, her male colleague who performed the same work but on a full-time schedule of 40 hours per week earned $107,500 ' nearly $4,200 more annually than the full-time equivalent of her salary. Ms. Lovell sued for gender discrimination under the Equal Pay Act and Title VII. The court held that part-time and full-time work can be compared in cases under the Equal Pay Act because the key is a difference in duties, not a difference in hours.

Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 (2d Cir. 2004)

In this case, Ms. Back worked as a school psychologist at an elementary school on a three-year tenure track. During her first two years, she received outstanding performance evaluations and assurances that she would receive tenure. As her tenure review approached, Ms. Back claimed her supervisors made comments such as '[p]lease do not get pregnant until I retire,' '[it is] not possible for [you] to be a good mother and have this job,' and '[your job is] not for a mother.' When Ms. Back was denied tenure, she sued for employment discrimination based on gender stereotypes in violation of her equal protection rights and state law. The Second Circuit vacated the district court's grant of summary judgment in favor of the defendant and remanded the case for trial. The Second Circuit held that stereotypes about mothers not being committed or motherhood not being compatible with work were themselves gender based and, therefore, could support a gender discrimination claim, even without comparative evidence of a similarly situated male employee. Many consider this decision to be one of the seminal FRD cases.

Lust v. Sealy, 383 F.3d 580 (7th Cir. 2004)

Ms. Lust worked as a sales representative for Sealy Mattress for eight years. She repeatedly expressed her interest in being promoted, knowing that such a promotion might involve relocation. Her male supervisor once questioned why her husband 'was not going to take care of [you].' The male supervisor subsequently promoted a man over Ms. Lust to a management position. The supervisor stated that he did not consider her for the position because she had children and, therefore, he assumed she would not want to relocate her family. Ms. Lust successfully sued for gender discrimination under Title VII.

Walker v. Fred Nesbit Distributing Company, 331 F. Supp. 2d 780 (S.D. Iowa 2004)

Ms. Walker worked as a truck driver. Her supervisor commented that driving a truck was a 'man's job.' When Ms. Walker became pregnant, she requested reassignment to light duty or, alternatively, requested assistance with lifting requirements. Her supervisor denied both requests under the guise that the company's new policy allowed light duty only for work-related injuries. Instead, Ms. Walker was given 18 weeks of leave. When her leave expired six days after she gave birth and she did not return to work two days later, she was fired. Despite the company's policy regarding light duty for work-related injuries only, three men were given light duty for non-work related injuries. Ms. Walker sued for gender discrimination under the Pregnancy Discrimination Act. The court allowed her claim to go forward.

Stansfield v. O'Reilly Automotive, No. H-04-4161, 2006 WL 1030010 (S.D. Tx. Apr. 19, 2006)

Ms. Stansfield worked for an automotive company ' O'Reilly Automotive. When she informed her supervisor that she was pregnant, he threw his hands up and said, 'what are we going to do now?' Although other employees were given light duty for various reasons, Ms. Stansfield was not, despite the fact that her doctor limited her lifting to no more than 20 pounds. Her supervisor responded that she was required to lift up to 50 pounds and if she could not do it, she could not do her job. As a result, Ms. Stansfield was forced to take unpaid medical leave. After her unpaid medical leave expired, she was fired. Ms. Stansfield sued for gender discrimination under Title VII and for violation of her rights under the FMLA. The court allowed her claims to go forward because it found that Ms. Stansfield had asserted viable claims of gender discrimination under Title VII and of interference with her FMLA rights by the company.

Kirleis v. Dickie, McCamey & Chilcote, PC, Civil Action No. 06-1495, 2007 WL 2142397 (W.D. Pa. July 24, 2007)

A high-profile case filed in the District Court for the Western District of Pennsylvania within the last year is bringing FRD cases into the national spotlight. Ms. Kirleis, a shareholder at a prominent firm, filed a complaint against the firm alleging that it had different methods of calculating compensation for female attorneys who have taken maternity leave and/or had children than it did for other attorneys. In the complaint, she alleged that one of the firm's decision-makers told her that she was not spending enough time with her children and husband and that women 'whose priorities were straight' should relinquish their shareholder status and move to part-time. Ms. Kirleis also alleged that she was told by another one of the firm's decision-makers that a large client, for whom she performed most of her work, preferred to have only 'gray-haired guys' try its cases. In addition, she was told that the 'gals' in the office would perform all of the work necessary to prepare cases that would be tried by the male attorneys. Ms. Kirleis asserted claims under Title VII of gender discrimination, retaliation, and hostile work environment as well as a claim under the Fair Labor Standards Act. This case is still pending in the Western District of Pennsylvania and its progress and outcome will be closely monitored.

EEOC Guidelines

On May 23, 2007, the Equal Employment Opportunity Commission ('EEOC') issued guidelines to assist individuals and companies in navigating FRD suits. The motivation for publishing such Guidelines may be the exponential increase in FRD cases, or a reflection of the attention such cases generate. Whatever the reason, the primary focus of the 27-page EEOC Guidelines is to address situations involving disparate treatment of employees with caregiving responsibilities for children, parents, or disabled family members under Title VII and the ADA. Within the guidelines, the EEOC analyzes a variety of issues. These issues are discussed below.

Sex-based Disparate Treatment of Female Caregivers

In the recently issued Guidelines, the EEOC advises employers to scrutinize adverse action against female caregivers or pregnant women. Similarly, investigators are encouraged to examine any and all evidence to determine whether the challenged action was unlawfully discriminatory. Such evidence may, but is not required to, include comparative evidence, comments by company officials, and examples of less favorable treatment of women after they give birth. Examples of relevant considerations in disparate treatment cases of female caregivers may include looking at whether only female applicants are asked questions regarding marriage, children, and childcare responsibility; whether supervisors assign women with caregiving responsibilities to less prestigious projects or lower-paid positions; whether supervisors deviate from workplace policies with respect to female caregivers; whether supervisors view females as poorer performers after assuming caregiving responsibilities despite the lack of actual change in the worker's performance, and whether women receive less favorable treatment after they assume caregiving responsibilities.

Pregnancy Discrimination

Title VII's prohibition against gender discrimination includes a prohibition against employment decisions based on pregnancy. This means employers must not make assumptions about pregnant workers (e.g., that they are less committed) or treat pregnant workers less favorably than non-pregnant workers. This is true regardless of whether the employer is acting out of hostility or believes it is acting in the employee's best interest. Moreover, the EEOC will generally regard a pregnancy-related inquiry as evidence of pregnancy discrimination if the employer subsequently makes an unfavorable job decision affecting that worker.

Discrimination Against Male Caregivers

Although women have borne the brunt of gender-based stereotyping, unlawful assumptions about working fathers and other male caregivers can lead to denial of leave opportunities and alternative work arrangements that are provided to female employees. For example, employers often deny male employees' requests for reduced work hours or leave to care for their children even though they grant similar requests made by female employees.

Unlawful Caregiver Stereotyping Under the ADA

It is widely understood that the ADA prohibits discrimination against a qualified worker because of the employee's own disability. Less well known is that the ADA prohibits discrimination due to an employee's relationship or association with a child, spouse, or parent with a disability. This means employers may not treat employees less favorably based on assumptions about their willingness or ability to perform a job satisfactorily while also providing care to a relative or other individual with a disability.

Retaliation

Employers are prohibited from retaliating against workers for opposing unlawful discrimination (e.g., complaining about gender stereotyping) or participating in the EEOC charge process (e.g., testifying on behalf of another worker). For example, a change in an employee's work schedule may make little difference to most workers, but may have a significant impact on a mother with school-age children. If that mother opposed discrimination or participated in an EEOC charge process prior to the schedule change, the EEOC may view such action as evidence of retaliation. Employers must avoid behavior that could reasonably deter a caregiver from engaging in protected activity.

Protective Steps Employers Should Take and Why

Avoid FRD Claims

As with most areas of employment law, the best starting point for an employer is to implement a policy to prohibit discrimination. If a company has an antidiscrimination policy, it should review its current policy to ensure that it contains the following components: a description of whom the policy covers; examples of conduct that is prohibited; an explanation of the employer's procedure for addressing complaints or concerns; and a definition of retaliation that emphasizes that the company does not tolerate such behavior. With respect to an employer's complaint procedure, first, the employer should have one in place. Second, the procedure should provide the names of two people for employees to contact with question or issues so as to avoid the potential scenario of an employee being required to complain to the supervisor discriminating against her. The complaint procedure should also promote prompt and effective action. Depending on the nature of the alleged offense, such action can be as simple as reporting back to the parties regarding the investigation.

Once an anti-discrimination policy is in place, employers must educate their workforce about the policy. Generally, it is best to provide training sessions for supervisors and non-supervisors separately. This is because supervisors' obligations are often different from non-supervisors' responsibilities. For example, supervisors make decisions regarding work assignments, promotions, salaries, discipline, and termination. Supervisors must make such personnel decisions based on legitimate business needs and individual performance rather than generalized gender-based notions. Non-supervisors typically do not make the above types of decisions regarding other employees. Nonetheless, non-supervisors must avoid remarks that reveal discriminatory biases and could result in a hostile work environment.

It is important, however, to underscore the need for employers to train all employees, not just supervisors. Training of non-supervisors increases awareness and sensitivity to FRD issues. Despite these benefits, employers often fail to train their non-supervisors due to fear that such training will 'educate the masses' and encourage lawsuits. Although it is possible that some employees may pursue litigation based on information they learn during training, it is more common for employees to utilize company-provided non-litigation avenues to resolve workplace problems if those employees know their company is committed to eliminating unlawful discrimination.

After an employer establishes a policy and educates its employees, the employer must follow through and enforce its policy. If an employer does not investigate complaints about offensive remarks or adverse employment actions, an antidiscrimination policy is meaningless. Investigation does not have to result in disciplinary action against every alleged offender. Indeed, at times, investigations may be unable to reach a definitive conclusion about what happened. Typically, this happens in cases with limited evidence (e.g., 'he said, she said' situations) or credible but divergent recollections among several witnesses. Even if this happens, an employer should still meet with the parties involved, conduct additional training for all employees (if warranted), and maintain a confidential report about the incident for its files. The fact that the employer follows up with the parties bolsters confidence in the system and may act as a deterrent to future inappropriate behavior.

Work with Your Workforce

Studies reveal numerous benefits for employers that implement flexible work arrangements. Benefits include employee retention, enhanced recruitment, increased productivity, reduced stress, and cost savings. As demonstrated below, these factors often overlap.

First, as the amount of time parents spend working increases and the number of households in which caregivers work outside the home continues to accelerate, flexibility in the workplace has become more important. Studies by Arlene Johnson (Business Impacts of Flexibility: An Imperative For Expansion 4 (2005)) and Joan C. Williams (Unbending Gender: Why Family And Work Conflict And What To Do About It, 66 (2001)) reveal that flexible workplace policies increase employee retention and reduce employee attrition, resulting in cost savings to the employer. Ask any employer whether increasing employee retention/reducing employee turnover is an important goal in their employee relations and the answer will be nothing short of a resounding yes. Employee turnover adversely impacts businesses in many different ways including drops in morale and increases in training costs.

Second, just as flexible work policies help retain employees, such policies can also help attract employees. As more workers consider the availability of family-friendly policies when making job decisions, companies can use their flexible policies as a marketing tool to attract candidates. Further, smaller companies with alternate work arrangements may be able to recruit more highly qualified candidates than they would otherwise attract. In such instances, prospective employees may be willing to exchange higher salaries and prestige for adjustable work schedules.

Third, alternative work policies can increase productivity by enhancing employees' loyalty to the company. Such policies also allow a company to stay open longer hours due to staggered shifts. Family-friendly policies can also instill a sense of commitment, thereby elevating an employee's productivity.

Fourth, stress-related illnesses and disabilities result in higher costs to employers due to medical expenses, decreased productivity, and increased absences. Studies reveal that allowing workers greater freedom regarding their work schedules decreases stress and enhances productivity.

Finally, all of the factors discussed above result in real cost savings. For example, as discussed, less turnover results in fewer company dollars being spent on training employees. Similarly, an effective recruitment policy can heighten good will, which translates into more clients. The increased revenue based on higher productivity and lower stress also impacts a company's bottom line. For all of these reasons, employers may want to consider promulgating alternative work schedules such
as part-time, compressed schedules, telecommuting, work sharing, staggered work hours, and seasonal or project based assignments.

Future FRD Issues

Due to the fact that FRD claims are relatively new phenomena and are brought under more than one type of legal theory, rulings tend to raise as many questions as they answer. For example, the Supreme Court's recent decision in Burlington Northern and Santa Fe Railway Co. v. White, ___ U.S. ___, 126 S. Ct. 2405 (2006) materially expands the scope of Title VII retaliation cases. Given that most FRD cases are filed under Title VII, will courts apply this broader definition of retaliation to claims based on gender stereotyping? Another question that will arise is whether a company's liability for gender stereotyping is limited to a supervisor's conduct or whether co-workers' stereotypical comments can also subject the company to liability?

There also will be numerous questions regarding what types of evidence and how much evidence courts will require employees to present before they can prevail on an FRD theory. Although the EEOC Guidelines insist that all types of relevant evidence should be considered, it is unclear what weight those Guidelines will carry given the Supreme Court's recent comments in, for instance, Ledbetter v. Goodyear Tire & Rubber Co., ___ U.S. ___, 127 S. Ct. 2162 (2007), in which the Court undermined the deference typically provided to the EEOC's guidelines and decisions. Similarly, it is uncertain what employers must prove to establish a legitimate defense to such actions. Finally, as with many employment laws, it is difficult to make general predictions regarding the outcome of FRD cases because each case is heavily fact-dependent. This may result in a larger number of employees filing cases to 'test' the waters.

Conclusion

Despite appearances to the contrary, employers do not have any new obligations. This is because the laws prohibiting employers from making discriminatory decisions based on stereotypes and gender have existed for years. Neither federal employment statutes nor federal case law recognize 'caregiver status' as a protected class. Nonetheless, given the continued growth of FRD cases, the media attention they are generating, and the issuance of EEOC's guidelines implicating FRD cases are now among EEOC's priorities, companies would be well-advised to ensure their practices, procedures, and policies do not discriminate based on gender or family stereotypes, and that employment decisions are based on legitimate criteria.

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

Part One of this article began a discussion of the dramatic increase in cases alleging caregiver discrimination. Part Two herein discusses 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.

Significant Cases

The first case articulating FRD in the U.S. Supreme Court, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), was heard in 1971. In that case, the Court ruled that Martin Marietta's policy barring mothers of school-aged children from applying for jobs that fathers of school-aged children occupied discriminated against women who were also mothers.

The Martin Marietta case was not, however, the end of the matter. Rather, it was just the beginning of this trend. As found in Mary C. Still's study, during the 70s, 80s, and early 90s, FRD cases steadily increased. 'Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination Against Workers with Family Responsibilities, Center for WorkLife Law.' Starting in the late 90s, there was a sharp spike in such cases. Some of the most significant cases from the past several years are summarized below in ascending order based on year.

Lovell v. BBNT Solutions , 295 F. Supp. 2d 611 (E.D. Va. 2003)

Ms. Lovell worked as a materials engineer for a technology research and development company. She elected to work a reduced schedule of 30 hours per week, for which she received $77,500 annually. Despite her reduced-hour schedule, she also made herself available on her day off to attend meetings with clients and perform other work. In contrast, her male colleague who performed the same work but on a full-time schedule of 40 hours per week earned $107,500 ' nearly $4,200 more annually than the full-time equivalent of her salary. Ms. Lovell sued for gender discrimination under the Equal Pay Act and Title VII. The court held that part-time and full-time work can be compared in cases under the Equal Pay Act because the key is a difference in duties, not a difference in hours.

Back v. Hastings on Hudson Union Free School District , 365 F.3d 107 (2d Cir. 2004)

In this case, Ms. Back worked as a school psychologist at an elementary school on a three-year tenure track. During her first two years, she received outstanding performance evaluations and assurances that she would receive tenure. As her tenure review approached, Ms. Back claimed her supervisors made comments such as '[p]lease do not get pregnant until I retire,' '[it is] not possible for [you] to be a good mother and have this job,' and '[your job is] not for a mother.' When Ms. Back was denied tenure, she sued for employment discrimination based on gender stereotypes in violation of her equal protection rights and state law. The Second Circuit vacated the district court's grant of summary judgment in favor of the defendant and remanded the case for trial. The Second Circuit held that stereotypes about mothers not being committed or motherhood not being compatible with work were themselves gender based and, therefore, could support a gender discrimination claim, even without comparative evidence of a similarly situated male employee. Many consider this decision to be one of the seminal FRD cases.

Lust v. Sealy, 383 F.3d 580 (7th Cir. 2004)

Ms. Lust worked as a sales representative for Sealy Mattress for eight years. She repeatedly expressed her interest in being promoted, knowing that such a promotion might involve relocation. Her male supervisor once questioned why her husband 'was not going to take care of [you].' The male supervisor subsequently promoted a man over Ms. Lust to a management position. The supervisor stated that he did not consider her for the position because she had children and, therefore, he assumed she would not want to relocate her family. Ms. Lust successfully sued for gender discrimination under Title VII.

Walker v. Fred Nesbit Distributing Company, 331 F. Supp. 2d 780 (S.D. Iowa 2004)

Ms. Walker worked as a truck driver. Her supervisor commented that driving a truck was a 'man's job.' When Ms. Walker became pregnant, she requested reassignment to light duty or, alternatively, requested assistance with lifting requirements. Her supervisor denied both requests under the guise that the company's new policy allowed light duty only for work-related injuries. Instead, Ms. Walker was given 18 weeks of leave. When her leave expired six days after she gave birth and she did not return to work two days later, she was fired. Despite the company's policy regarding light duty for work-related injuries only, three men were given light duty for non-work related injuries. Ms. Walker sued for gender discrimination under the Pregnancy Discrimination Act. The court allowed her claim to go forward.

Stansfield v. O'Reilly Automotive, No. H-04-4161, 2006 WL 1030010 (S.D. Tx. Apr. 19, 2006)

Ms. Stansfield worked for an automotive company ' O'Reilly Automotive. When she informed her supervisor that she was pregnant, he threw his hands up and said, 'what are we going to do now?' Although other employees were given light duty for various reasons, Ms. Stansfield was not, despite the fact that her doctor limited her lifting to no more than 20 pounds. Her supervisor responded that she was required to lift up to 50 pounds and if she could not do it, she could not do her job. As a result, Ms. Stansfield was forced to take unpaid medical leave. After her unpaid medical leave expired, she was fired. Ms. Stansfield sued for gender discrimination under Title VII and for violation of her rights under the FMLA. The court allowed her claims to go forward because it found that Ms. Stansfield had asserted viable claims of gender discrimination under Title VII and of interference with her FMLA rights by the company.

Kirleis v. Dickie, McCamey & Chilcote, PC, Civil Action No. 06-1495, 2007 WL 2142397 (W.D. Pa. July 24, 2007)

A high-profile case filed in the District Court for the Western District of Pennsylvania within the last year is bringing FRD cases into the national spotlight. Ms. Kirleis, a shareholder at a prominent firm, filed a complaint against the firm alleging that it had different methods of calculating compensation for female attorneys who have taken maternity leave and/or had children than it did for other attorneys. In the complaint, she alleged that one of the firm's decision-makers told her that she was not spending enough time with her children and husband and that women 'whose priorities were straight' should relinquish their shareholder status and move to part-time. Ms. Kirleis also alleged that she was told by another one of the firm's decision-makers that a large client, for whom she performed most of her work, preferred to have only 'gray-haired guys' try its cases. In addition, she was told that the 'gals' in the office would perform all of the work necessary to prepare cases that would be tried by the male attorneys. Ms. Kirleis asserted claims under Title VII of gender discrimination, retaliation, and hostile work environment as well as a claim under the Fair Labor Standards Act. This case is still pending in the Western District of Pennsylvania and its progress and outcome will be closely monitored.

EEOC Guidelines

On May 23, 2007, the Equal Employment Opportunity Commission ('EEOC') issued guidelines to assist individuals and companies in navigating FRD suits. The motivation for publishing such Guidelines may be the exponential increase in FRD cases, or a reflection of the attention such cases generate. Whatever the reason, the primary focus of the 27-page EEOC Guidelines is to address situations involving disparate treatment of employees with caregiving responsibilities for children, parents, or disabled family members under Title VII and the ADA. Within the guidelines, the EEOC analyzes a variety of issues. These issues are discussed below.

Sex-based Disparate Treatment of Female Caregivers

In the recently issued Guidelines, the EEOC advises employers to scrutinize adverse action against female caregivers or pregnant women. Similarly, investigators are encouraged to examine any and all evidence to determine whether the challenged action was unlawfully discriminatory. Such evidence may, but is not required to, include comparative evidence, comments by company officials, and examples of less favorable treatment of women after they give birth. Examples of relevant considerations in disparate treatment cases of female caregivers may include looking at whether only female applicants are asked questions regarding marriage, children, and childcare responsibility; whether supervisors assign women with caregiving responsibilities to less prestigious projects or lower-paid positions; whether supervisors deviate from workplace policies with respect to female caregivers; whether supervisors view females as poorer performers after assuming caregiving responsibilities despite the lack of actual change in the worker's performance, and whether women receive less favorable treatment after they assume caregiving responsibilities.

Pregnancy Discrimination

Title VII's prohibition against gender discrimination includes a prohibition against employment decisions based on pregnancy. This means employers must not make assumptions about pregnant workers (e.g., that they are less committed) or treat pregnant workers less favorably than non-pregnant workers. This is true regardless of whether the employer is acting out of hostility or believes it is acting in the employee's best interest. Moreover, the EEOC will generally regard a pregnancy-related inquiry as evidence of pregnancy discrimination if the employer subsequently makes an unfavorable job decision affecting that worker.

Discrimination Against Male Caregivers

Although women have borne the brunt of gender-based stereotyping, unlawful assumptions about working fathers and other male caregivers can lead to denial of leave opportunities and alternative work arrangements that are provided to female employees. For example, employers often deny male employees' requests for reduced work hours or leave to care for their children even though they grant similar requests made by female employees.

Unlawful Caregiver Stereotyping Under the ADA

It is widely understood that the ADA prohibits discrimination against a qualified worker because of the employee's own disability. Less well known is that the ADA prohibits discrimination due to an employee's relationship or association with a child, spouse, or parent with a disability. This means employers may not treat employees less favorably based on assumptions about their willingness or ability to perform a job satisfactorily while also providing care to a relative or other individual with a disability.

Retaliation

Employers are prohibited from retaliating against workers for opposing unlawful discrimination (e.g., complaining about gender stereotyping) or participating in the EEOC charge process (e.g., testifying on behalf of another worker). For example, a change in an employee's work schedule may make little difference to most workers, but may have a significant impact on a mother with school-age children. If that mother opposed discrimination or participated in an EEOC charge process prior to the schedule change, the EEOC may view such action as evidence of retaliation. Employers must avoid behavior that could reasonably deter a caregiver from engaging in protected activity.

Protective Steps Employers Should Take and Why

Avoid FRD Claims

As with most areas of employment law, the best starting point for an employer is to implement a policy to prohibit discrimination. If a company has an antidiscrimination policy, it should review its current policy to ensure that it contains the following components: a description of whom the policy covers; examples of conduct that is prohibited; an explanation of the employer's procedure for addressing complaints or concerns; and a definition of retaliation that emphasizes that the company does not tolerate such behavior. With respect to an employer's complaint procedure, first, the employer should have one in place. Second, the procedure should provide the names of two people for employees to contact with question or issues so as to avoid the potential scenario of an employee being required to complain to the supervisor discriminating against her. The complaint procedure should also promote prompt and effective action. Depending on the nature of the alleged offense, such action can be as simple as reporting back to the parties regarding the investigation.

Once an anti-discrimination policy is in place, employers must educate their workforce about the policy. Generally, it is best to provide training sessions for supervisors and non-supervisors separately. This is because supervisors' obligations are often different from non-supervisors' responsibilities. For example, supervisors make decisions regarding work assignments, promotions, salaries, discipline, and termination. Supervisors must make such personnel decisions based on legitimate business needs and individual performance rather than generalized gender-based notions. Non-supervisors typically do not make the above types of decisions regarding other employees. Nonetheless, non-supervisors must avoid remarks that reveal discriminatory biases and could result in a hostile work environment.

It is important, however, to underscore the need for employers to train all employees, not just supervisors. Training of non-supervisors increases awareness and sensitivity to FRD issues. Despite these benefits, employers often fail to train their non-supervisors due to fear that such training will 'educate the masses' and encourage lawsuits. Although it is possible that some employees may pursue litigation based on information they learn during training, it is more common for employees to utilize company-provided non-litigation avenues to resolve workplace problems if those employees know their company is committed to eliminating unlawful discrimination.

After an employer establishes a policy and educates its employees, the employer must follow through and enforce its policy. If an employer does not investigate complaints about offensive remarks or adverse employment actions, an antidiscrimination policy is meaningless. Investigation does not have to result in disciplinary action against every alleged offender. Indeed, at times, investigations may be unable to reach a definitive conclusion about what happened. Typically, this happens in cases with limited evidence (e.g., 'he said, she said' situations) or credible but divergent recollections among several witnesses. Even if this happens, an employer should still meet with the parties involved, conduct additional training for all employees (if warranted), and maintain a confidential report about the incident for its files. The fact that the employer follows up with the parties bolsters confidence in the system and may act as a deterrent to future inappropriate behavior.

Work with Your Workforce

Studies reveal numerous benefits for employers that implement flexible work arrangements. Benefits include employee retention, enhanced recruitment, increased productivity, reduced stress, and cost savings. As demonstrated below, these factors often overlap.

First, as the amount of time parents spend working increases and the number of households in which caregivers work outside the home continues to accelerate, flexibility in the workplace has become more important. Studies by Arlene Johnson (Business Impacts of Flexibility: An Imperative For Expansion 4 (2005)) and Joan C. Williams (Unbending Gender: Why Family And Work Conflict And What To Do About It, 66 (2001)) reveal that flexible workplace policies increase employee retention and reduce employee attrition, resulting in cost savings to the employer. Ask any employer whether increasing employee retention/reducing employee turnover is an important goal in their employee relations and the answer will be nothing short of a resounding yes. Employee turnover adversely impacts businesses in many different ways including drops in morale and increases in training costs.

Second, just as flexible work policies help retain employees, such policies can also help attract employees. As more workers consider the availability of family-friendly policies when making job decisions, companies can use their flexible policies as a marketing tool to attract candidates. Further, smaller companies with alternate work arrangements may be able to recruit more highly qualified candidates than they would otherwise attract. In such instances, prospective employees may be willing to exchange higher salaries and prestige for adjustable work schedules.

Third, alternative work policies can increase productivity by enhancing employees' loyalty to the company. Such policies also allow a company to stay open longer hours due to staggered shifts. Family-friendly policies can also instill a sense of commitment, thereby elevating an employee's productivity.

Fourth, stress-related illnesses and disabilities result in higher costs to employers due to medical expenses, decreased productivity, and increased absences. Studies reveal that allowing workers greater freedom regarding their work schedules decreases stress and enhances productivity.

Finally, all of the factors discussed above result in real cost savings. For example, as discussed, less turnover results in fewer company dollars being spent on training employees. Similarly, an effective recruitment policy can heighten good will, which translates into more clients. The increased revenue based on higher productivity and lower stress also impacts a company's bottom line. For all of these reasons, employers may want to consider promulgating alternative work schedules such
as part-time, compressed schedules, telecommuting, work sharing, staggered work hours, and seasonal or project based assignments.

Future FRD Issues

Due to the fact that FRD claims are relatively new phenomena and are brought under more than one type of legal theory, rulings tend to raise as many questions as they answer. For example, the Supreme Court's recent decision in Burlington Northern and Santa Fe Railway Co. v. White , ___ U.S. ___, 126 S. Ct. 2405 (2006) materially expands the scope of Title VII retaliation cases. Given that most FRD cases are filed under Title VII, will courts apply this broader definition of retaliation to claims based on gender stereotyping? Another question that will arise is whether a company's liability for gender stereotyping is limited to a supervisor's conduct or whether co-workers' stereotypical comments can also subject the company to liability?

There also will be numerous questions regarding what types of evidence and how much evidence courts will require employees to present before they can prevail on an FRD theory. Although the EEOC Guidelines insist that all types of relevant evidence should be considered, it is unclear what weight those Guidelines will carry given the Supreme Court's recent comments in, for instance, Ledbetter v. Goodyear Tire & Rubber Co. , ___ U.S. ___, 127 S. Ct. 2162 (2007), in which the Court undermined the deference typically provided to the EEOC's guidelines and decisions. Similarly, it is uncertain what employers must prove to establish a legitimate defense to such actions. Finally, as with many employment laws, it is difficult to make general predictions regarding the outcome of FRD cases because each case is heavily fact-dependent. This may result in a larger number of employees filing cases to 'test' the waters.

Conclusion

Despite appearances to the contrary, employers do not have any new obligations. This is because the laws prohibiting employers from making discriminatory decisions based on stereotypes and gender have existed for years. Neither federal employment statutes nor federal case law recognize 'caregiver status' as a protected class. Nonetheless, given the continued growth of FRD cases, the media attention they are generating, and the issuance of EEOC's guidelines implicating FRD cases are now among EEOC's priorities, companies would be well-advised to ensure their practices, procedures, and policies do not discriminate based on gender or family stereotypes, and that employment decisions are based on legitimate criteria.

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