Beware the Parent Trap

While parents are not a protected class, claims based on an employee's status as a parent or nonparent may be pursued successfully under existing causes of action, frequently sex discrimination. See Knight infra at page 1. Such claims ' often characterized as family responsibilities discrimination (FRD) ' rose over 400% between 1996 and 2005, according to a 2006 study by Hastings College of the Law's Center for WorkLife Law.

Avoid the Trap

In-house counsel can help reduce the chances of a lawsuit, generally by advising managers to treat similarly situated employees the same regardless of their family responsibilities and never to make an employment decision on the basis of an employee's status as a parent or nonparent. In addition, there are a few specific rules that in-house counsel should share with human resources and the company's managers.

Avoid “family talk” during the interview process. In an attempt to get a sense of an applicant's personality, interviewers may ask seemingly innocuous questions about the applicant's personal life. Even if the interviewer does not ask such questions during the formal interview process, it is not uncommon for this to be the subject of the small talk that precedes or follows the formal interview. If possible, interviewers should avoid any discussion of an applicant's personal life at any time during the interview process. Information regarding how an applicant will respond to certain situations in the workplace can best be gleaned from carefully crafted behavioral and situational interview questions.

If an applicant shares personal information without being asked, interviewers should do their best not to ask follow-up questions and to guide the applicant to another topic of conversation.

Focus on the performance deficiency rather than the cause of the deficiency. Employers can run into trouble when they fail to document performance deficiencies, but problems can also arise when such documentation focuses on the cause of the deficiencies.

For example, sometimes employees reveal family situations accidentally, such as when they are habitually late to work. The employee apologizes each time, and eventually explains to her manager that the delays are due to unavoidable circumstances at the child's day care. Should the manager, consistent with the company's progressive discipline policy, issue a written warning, she needs to reiterate the company's lateness policy carefully and simply cite lateness as the basis for the warning. If the manager writes the employee up for “showing a lack of commitment to her work by putting her parenting responsibilities before her responsibilities to the company,” the company faces a serious liability issue.

In granting flexible work options, focus on objective eligibility criteria ' for example, department or position, duration of employment, discipline history, performance record and/or history with regard to accuracy and timely reporting of hours worked that are clearly explained in a flexible workplace policy. A flexible workplace policy should also make clear that not all eligible employees will be permitted to work a flexible schedule. Rather, this decision will be made solely by the company on the basis of a variety of factors, including the requirements of the job, the amount of interaction with other employees, customers, clients and vendors required by the job, the amount of day-to-day supervision required, the type of arrangement requested, the business needs of the company, and the availability of others when the employee is not available.

Decisions regarding flexible work arrangements should not be left to managers alone. Consistency can be assured only if higher-level management, in-house counsel, and/or human resources are also involved.

Conclusion

With employees increasingly sensitive to signs of favoritism, in a society highly focused on families and children, the balancing act for corporations is complex and fraught with peril. In-house counsel increasingly must help minimize this risk for their companies by implementing policies and practices that make it more likely that all employees will be treated the same regardless of their parenting obligations.

Jennifer Blum Feldman is a partner at Wolf, Block, Schorr and Solis-Cohen, specializing in employment law compliance, particularly with regard to EEO and wage-and-hour issues. This article originally ran in Corporate Counsel, a sister publication of this newsletter.

While parents are not a protected class, claims based on an employee's status as a parent or nonparent may be pursued successfully under existing causes of action, frequently sex discrimination. See Knight infra at page 1. Such claims ' often characterized as family responsibilities discrimination (FRD) ' rose over 400% between 1996 and 2005, according to a 2006 study by Hastings College of the Law's Center for WorkLife Law.

Avoid the Trap

In-house counsel can help reduce the chances of a lawsuit, generally by advising managers to treat similarly situated employees the same regardless of their family responsibilities and never to make an employment decision on the basis of an employee's status as a parent or nonparent. In addition, there are a few specific rules that in-house counsel should share with human resources and the company's managers.

Avoid “family talk” during the interview process. In an attempt to get a sense of an applicant's personality, interviewers may ask seemingly innocuous questions about the applicant's personal life. Even if the interviewer does not ask such questions during the formal interview process, it is not uncommon for this to be the subject of the small talk that precedes or follows the formal interview. If possible, interviewers should avoid any discussion of an applicant's personal life at any time during the interview process. Information regarding how an applicant will respond to certain situations in the workplace can best be gleaned from carefully crafted behavioral and situational interview questions.

If an applicant shares personal information without being asked, interviewers should do their best not to ask follow-up questions and to guide the applicant to another topic of conversation.

Focus on the performance deficiency rather than the cause of the deficiency. Employers can run into trouble when they fail to document performance deficiencies, but problems can also arise when such documentation focuses on the cause of the deficiencies.

For example, sometimes employees reveal family situations accidentally, such as when they are habitually late to work. The employee apologizes each time, and eventually explains to her manager that the delays are due to unavoidable circumstances at the child's day care. Should the manager, consistent with the company's progressive discipline policy, issue a written warning, she needs to reiterate the company's lateness policy carefully and simply cite lateness as the basis for the warning. If the manager writes the employee up for “showing a lack of commitment to her work by putting her parenting responsibilities before her responsibilities to the company,” the company faces a serious liability issue.

In granting flexible work options, focus on objective eligibility criteria ' for example, department or position, duration of employment, discipline history, performance record and/or history with regard to accuracy and timely reporting of hours worked that are clearly explained in a flexible workplace policy. A flexible workplace policy should also make clear that not all eligible employees will be permitted to work a flexible schedule. Rather, this decision will be made solely by the company on the basis of a variety of factors, including the requirements of the job, the amount of interaction with other employees, customers, clients and vendors required by the job, the amount of day-to-day supervision required, the type of arrangement requested, the business needs of the company, and the availability of others when the employee is not available.

Decisions regarding flexible work arrangements should not be left to managers alone. Consistency can be assured only if higher-level management, in-house counsel, and/or human resources are also involved.

Conclusion

With employees increasingly sensitive to signs of favoritism, in a society highly focused on families and children, the balancing act for corporations is complex and fraught with peril. In-house counsel increasingly must help minimize this risk for their companies by implementing policies and practices that make it more likely that all employees will be treated the same regardless of their parenting obligations.

Jennifer Blum Feldman is a partner at Wolf, Block, Schorr and Solis-Cohen, specializing in employment law compliance, particularly with regard to EEO and wage-and-hour issues. This article originally ran in Corporate Counsel, a sister publication of this newsletter.