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“Family Responsibilities Discrimination:” Get familiar with this term

October 10, 2012

Article courtesy of SBAM Approved Partner ASE

By Joe DeSantis 

Michigan’s HR practitioners will not find the term “Family Responsibilities” in either Title VII or Elliott-Larsen as a new protected category under either law—at least not yet. But they need to know about it anyway.

Federal law does not specifically recognize Family Responsibilities as a protected category, and while a few states do address it directly in their statute books, Michigan does not. Employment attorney Jennifer Salvatore of Ann Arbor-based Nacht Law headed up a group that approached the legislature about two years ago with a proposed addition to the Elliot-Larsen Civil Rights Act that would have specifically added Family Responsibilities as a protected category. However the amended bill was never taken up, and Ms. Salvatore told everythingpeople.™ This Week! that she does not expect it to be taken up in the near future.

Nevertheless, HR people still need to get familiar with the term “Family Responsibilities Discrimination” (or FRD) anyway.  It needs to be seen as an umbrella term for discrimination against any employee who would be protected by Title VII, or Elliott-Larsen, or ADA or FMLA, where the disparate treatment can be traced back, however indirectly, to the person’s family caregiving responsibilities.

The term has come into use because the number of employment lawsuits related to family caregiving responsibilities has exploded in recent years. According to a 2010 study by The Center for Worklife Law, the number of such cases grew by 400% between 2000 and 2010; in those cases the plaintiff-employee prevailed nearly half the time, which is a far higher employee win rate than in other types of employment cases. And, payouts in these cases averaged over $500,000 either by settlement or jury verdict.

These numbers should come as no surprise; a very large and growing proportion of employees today can be identified as Sandwich Generation workers—they have caregiving responsibilities for either their own children or one or more of their parents or spouse’s parents, or children and parents at the same time.

This past spring the EEOC came out with an update to a guidance it put out originally in 2007 that addresses the issue. It is intended for employers to help them determine whether or not disparate treatment, when it occurs, happens because the employer fell back on a gender or racial or age or parental or other stereotype in responding to an employee’s behavior that was triggered by his or her family caregiving responsibilities.

Consider, for example, the case of a male employee who is a caregiver and a female employee who is also a caregiver. The male receives preferential treatment because the female is perceived to be less committed to her career. You have gender-based disparate treatment traceable to the female’s caregiving responsibilities.

Or consider the male caregiver who is denied leave to care for a child or a parent when a female counterpart is granted such leave. Again, gender-based disparate treatment traceable to his caregiving responsibilities.

Or consider the older employee who cares for an elderly parent and is treated less favorably than  younger employees who routinely are given time to care for their new babies . . . you may have age-based discrimination tied to the older employee’s caregiving responsibilities.

Or consider the female job applicant who is pregnant and who is passed over for hire in favor of another female who is not pregnant. In this case, you have pregnancy-based discrimination, which is de facto related to family caregiving responsibilities.  

The EEOC’s guidance offers a number of considerations it would look at to determine whether or not disparate treatment of caregivers has occurred. Here are only three of them:

  1. Whether the employer asked female applicants, but not male applicants (or applicants of color but not white applicants, etc.) whether they were married or had young children, or about their childcare or other caregiving responsibilities
  2. Whether the employer denied benefits or leave time to male caregivers that it routinely granted to female caregivers
  3. Whether the employer began subjecting the caregiver to less favorable treatment soon after it became aware of caregiving responsibilities or that the employee had become pregnant.

To sum up, neither federal nor Michigan law expressly forbids discrimination based solely on one’s parental or caregiving responsibilities. In fact, federal law would not technically forbid treating people in protected groups equally unfavorably because of their caregiving responsibilities. (Consider, for example, a working mother and a working father both treated less favorably than their childless colleagues.) But FRD would occur if an employee in a protected group was subjected to disparate treatment compared to colleagues in non-protected groups, and the behavior being addressed is traceable to that person’s caregiving responsibilities.

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