New England Biz Law Update
As the number of cases alleging family responsibilities bias continues to rise, the Equal Employment Opportunity Commission recently issued guidelines addressing this emerging area of employment law.
According to the agency, the guidelines are intended to “assist investigators, employees and employers in assessing whether a particular employment decision affecting a caregiver might unlawfully discriminate” and to “illustrate circumstances” in which stereotyping or other forms of disparate treatment may violate an employee’s rights.
The guidelines – entitled “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities” – can be found in the important documents section of www.newenglandbizlawupdate.com.
While the agency emphasized it was not intending to create a new protected category of workers, it provides 20 different examples of caregiver (also known as family responsibilities) discrimination – such as unlawful stereotyping during the hiring process and creation of a hostile work environment based on stereotypes about mothers or fathers.
According to employment attorneys, the guidelines recognize a rapidly growing area of law and provide needed guidance.
Cynthia Calvert, deputy director at the Center for WorkLife Law at Hastings College of Law, said that family responsibilities discrimination claims have increased 400 percent over the last decade, according to a report issued by her organization in July 2006.
“Younger men and women are coming into the workforce with a different set of expectations” about spending more time with their families and less time in the office, Calvert said.
Coupled with increased information available to workers, awareness of the issue is at an all-time high, leading to more claims, she said.
For employers, the guidelines are a warning the EEOC “will be more aggressive investigating these claims and investigators will have a better idea what to look for,” said employment attorney Matt Halpern, a partner at Jackson Lewis in Melville, N.Y. “The guidelines recognize a trend that going on in society.”
William Hannum, a partner at Schwartz Hannum in Andover, Mass., agreed.
“There have been a lot of cases and a growing body of legal articles discussing the issue, and the EEOC is now trying to shape the discussion of this expanding area of law,” he said.
Tying claims to existing law
The most common example of caregiver discrimination occurs when a woman informs her employer she is pregnant or has a child and finds her workload and responsibilities decreased – the so-called “Mommy track,” Halpern said.
“The assumption is that a pregnant woman or a woman who has recently had a child is no longer devoted to her work,” he explained.
Men who file these claims typically make the opposite argument: That they are being discriminated against for not acting in accordance with gender stereotypes, Calvert explained.
“We had a father call our hotline who had taken some time off work for child care purposes, and when he returned he was put on rotating shifts so that he could never set up his child care, and it essentially forced him to quit,” she said.
But the challenge of a caregiver or family responsibilities claim is that it must be tied to another form of discrimination, because being a caregiver is not a protected class.
Instead, plaintiffs must rely on statutes such as the Americans with Disabilities Act (needing time off to care for a disabled child, for example) or Title VII (perhaps tying the claim to race discrimination).
One of the leading cases, Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 (2nd Cir. 2004), was § 1983 suit filed by a school psychologist who was terminated after her maternity leave when school officials questioned her ability to combine work and motherhood (The plaintiff ultimately lost at trial).
And the largest verdict awarded for a family responsibilities claim came in a Family and Medical Leave Act case, when a maintenance worker took approved leave to care for his dying mother and his father, who suffered from Alzheimer’s.
In his absence, his employer enacted a policy grading employees based on the amount of work they completed in a set period of time. The employer used the policy as grounds for firing the worker, who sued and was awarded $11.65 million by a Chicago jury (although the case was subsequently settled). (Schultz v. Advocate Health & Hospitals Corp., No. 01 C 0702 (N.D. Ill. 2002).)
Calvert noted that plaintiffs are also using a variety of state law claims, from state equivalents to the federal discrimination statutes to common law claims like wrongful discharge, tortious interference with economic advantage, breach of contract or intentional infliction of emotional distress.
A handful of states have enacted statutes specifically addressing caregiver discrimination. The District of Columbia has an ordinance that protects people from family responsibilities discrimination, and California has legislation pending that would prohibit such discrimination. In Alaska, a more limited statute protects workers from discrimination based on parental status, and a similar executive order covers federal workers and contractors, Calvert added.
Benevolent discrimination?
Employment attorneys agree training is the key to reducing family responsibilities discrimination and lawsuits – although that can be easier said than done, noted Hannum.
“It can be very difficult as the employer to be having a conversation with an employee and avoid all family and personal life topics,” he said. “But the guidelines really seem to be sending a message to employers to focus on the job, and not to focus on the family, or kids. Employers are well-advised to stay away from those issues and really stick to the job description both in interviews and in conversations.”
Phelan said he often counsels women who are concerned about telling their employer when they become pregnant.
“What used to be seen as a moment of joy is becoming a moment of fear,” he said. “Women are uncertain what the consequences are going to be for their employment.”
Phelan was recently retained by a woman at a major securities firm who was terminated within 30 seconds of telling her boss she was pregnant.
“Many employers believe there is no way a female employee is going to be able to handle the demands of motherhood and a full-time, demanding job,” he said.
The guidelines offer an example of what Phelan referred to as “discrimination for benevolent reasons,” where an employer premises a decision on what he or she thinks is a generous reaction, but which an employee sees as paternalistic, he said.
“The classic example is when an employer reduces an employee’s hours, thinking that they are being nice so she can spend more time with her child,” he said. “I’m glad the EEOC specifically recognized this fact pattern.”
