by Jackson Lewis

It will come as no surprise to employers that balancing work and family life how- ever that is defined - is a dilemma faced by most, if not all, working people at some point in their lives. For many employees, the responsibilities as caregiver to children, elderly parents, or disabled family members create daily challenges to fulfilling their work obligations. On the other side of the equation, employers competing for business in an increasingly global marketplace must be able to meet the demand for products and services, maintain and increase profitability, and attract and retain qualified staff who can, will and do meet reasonable attendance and performance standards. What seems elemental in the employment relationship can, indeed, become monumental.

The challenge for employers is to develop the right mix of flexibility and fairness in work scheduling, leave policies, dependent care assistance, and benefits.

This will promote positive employee relations, recruit and retain a diverse and well-qualified workforce, address and resolve job-related issues, and defend against claims of unfair or unlawful conduct. Employers that fail to grasp the business necessity for adapting to work/family dynamics will be less competitive, less profitable, and more vulnerable to discrimination and other legal claims, as well as human resource challenges.

Family Responsibilities Discrimination and Stereotypes

Although not specifically prohibited in anti-bias laws, â€Å“family responsibilities discriminationâ€Â as a category of legal claims is gaining recognition. A 2006 report by the Center for WorkLife Law at University of California Hastings College of the Law found FRD claims had increased by 400% over the prior decade and had a greater than 50% success rate (defined as any result that was not a ruling in favor of the employer). Most common among FRD claims are failure to hire, failure to promote, denial of benefits, denial of, interference with or retaliation related to Family and Medical Leave rights, hostile work environment, retaliation and wrongful termi- nation. The statutory bases for these claims come from Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Family and Medical Leave Act, the Americans with Disabilities Act, the Equal Pay Act, the Employee Retirement Income Security Act, state fair employment practice laws, and common law causes of action such as wrongful discharge and breach of contract. The offending conduct often is the result of what the Center for WorkLife Law terms â€Å“unexamined biasesâ€Â that result in actions based not on individual performance or behavior but on stereotypes about the relative competency of caregivers, especially women. Based on factual evidence â€â€œ often statements made by managers or supervisors â€â€œ FRD claims are difficult to prove and to defend. Nonetheless, plaintiffs in such cases have netted large monetary awards and settlements, and the judicial climate for judges and juries sympathetic to the plight of caregivers is favorable regardless of conservative or liberal persuasion.

Gender stereotyping as a form of sex discrimination was recognized by the U.S. Supreme Court in Price Waterhouse v. Hopkins 490 U.S. 228 (1989). A woman sued her employer for denying her a promotion based on her failure to conform to stereotypical traits of femininity (in walking, talking, behavior towards others, dress, and appearance). The Court found this to be evidence of sex discrimination in violation of Title VII, setting the precedent for a line of employment discrimination rulings based on stereotypes about gender. More recently, in an FMLA case, the Supreme Court again examined stereotypes about both women and men as caregivers and noted that â€Å“stereotypes about women’s domestic responsibilities are rein- forced by parallel stereotypes presuming a lack of domestic responsibilities for men ... creat[ing] a self-fulfilling cycle of discrimination.â€Â Nevada Department of Human Resources v. Hibbs, 533 U.S. 721 (2003).

Title VII, the ADA, and the EEOC Guidance

Plaintiffs claiming family responsibilities discrimination rely on Title VII more frequently than any other statute to support claims they have been treated unlawfully based on their sex. In 1971, the U.S. Supreme Court established the â€Å“sex-plusâ€Â theory of discrimination under Title VII in Phillips v. Martin-Marietta Corporation, 400 U.S. 542 (1971). The Court found the employer’s refusal to hire women with young children discriminatory because those women were treated differently based on gender plus the fact they had young children. Since then, the law has evolved and it is no longer necessary for a plaintiff to show gender plus another factor, such as motherhood, for actions based on stereotypes to be found discriminatory.

The increase in bias claims involving caregivers led to the EEOC’s May 2007 enforcement guidance, â€Å“Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.â€Â The guidance notes it â€Å“is not intended to create a new protected category but rather to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.â€Â

The guidance discusses the types of evidence the EEOC may examine, such as:

• female but not male applicants are asked whether they are married, have young children, or need child care;
• stereotypical or derogatory comments are made by management about pregnant workers, working mothers, or other female caregivers;
• women are subjected to less favorable treatment soon after the employer becomes aware they are pregnant or have caregiving responsibilities;
• women with caregiving responsibilities are assigned to less prestigious or lower-paid positions.

The guidance reiterates that sex discrimination against working mothers is prohibited by Title VII, even if the employer does not discriminate against childless women. Investigators are alerted to be particularly attentive to changes in an employee's per- formance assessment after she becomes pregnant or assumes family responsibilities. The legal standards for establishing discrimination based on harassment and hostile work environment apply to FRD. Employers may be liable if workers with caregiving responsibilities are subjected to harassment because of race, sex (including pregnancy), association with an individual with a disability, or another protected characteristic, and the conduct is sufficiently severe or pervasive to create a hostile work environment.

Although in far fewer numbers, claims of FRD have successfully been brought by men under Title VII (as well as the Americans with Disabilities Act, and the Family and Medical Leave Act). The EEOC guidance notes that male employees may not be denied opportunities available to working women, for example, leave otherwise available to women unless related to disability from pregnancy or childbirth. (Under the ADA and FMLA, male employees successfully have challenged adverse employment actions allegedly motivated by an employer̢۪s desire to avoid medical care expenses for a family member̢۪s disability and for termination in retaliation for taking FMLA leave.)

The Americans with Disabilities Act also has been used by caregivers to charge employers with discrimination based on â€Å“relationship or associationâ€Â with disabled individuals for whom they provide care. The individual receiving the care must meet the ADA’s definition of â€Å“disabilityâ€Â for the Act to extend protection to the caregiver. The EEOC long has taken the position that the ADA’s â€Å“associationâ€Â provision prohibits discrimination against an individual who takes time off or who is not hired because of her or his caregiving responsibilities. The guidance reiterates that employers may not treat workers less favorably based on stereotypical assumptions about a worker’s ability to perform job duties satisfactorily while providing care to an individual with a disability.

Reminders from the EEOC: Shore up Policies, Leave Management, Training
The EEOC guidance serves as a reminder that to reduce the likelihood of a charge or claim based on circumstances indicating family responsibilities discrimination, employers should:

• examine policies and practices to ensure that only non-discriminatory criteria are considered in hiring, promotional and termination decisions;
• base all performance evaluations on documented, objective criteria and observations;
• distinguish between pregnancy-related leave and other forms of leave, ensuring that any leave specifically provided to women alone is limited to the period that a woman is incapacitated by pregnancy or childbirth;
• review leave requests and monitor approved leaves by type and length to ensure they do not have a disparate impact on caregivers;
• revise anti-harassment policies to include examples of unlawful harassment directed at caregivers and handle complaints from caregivers regarding possible harassment in the same manner as others;
• train supervisors regarding gender discrimination, stereotyping, harassment and retaliation in the context of workers with family care responsibilities.

[EEOC enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, Notice No. 915.002; May 23, 2007.]