Family Responsibility Discrimination

Author: Beth Zoller, XpertHR Legal Editor

There has been a dramatic rise in family responsibility discrimination claims in the US as an increasing number of workers are tasked with caring for aging parents or taking care of small children. Therefore, it is essential for employers to know how to manage employees with caregiving responsibilities and prevent discrimination, harassment and retaliation against workers with family responsibilities.

The following are key steps an employer can take to effectively manage caregivers and minimize the risk of a family responsibility discrimination claim.

1. Understand the Parameters of Family Responsibility Discrimination

Family responsibility discrimination or caregiver discrimination occurs when an employee or applicant suffers an adverse employment action (e.g., discipline, failure to hire/promote, termination) because of an employer's or supervisor's bias with respect to how workers with family responsibilities will or should act. It is generally not based on the worker's actual performance. It occurs when workers are treated differently based on caretaking responsibilities for young children, elderly parents, partners or spouses.

Although a number of state and municipalities prohibit discrimination based on family responsibilities, there is no explicit federal statute making caregivers a protected class. Still, protections can be found under Title VII of the Civil Rights Act, the Americans With Disabilities Act, the Family and Medical Leave Act (FMLA) the Employee Retirement Income Security Act (ERISA) and other federal antidiscrimination laws. Further, the Equal Employment Opportunity Commission (EEOC) has recognized that stereotypes regarding pregnant women and mothers may give rise to family responsibility discrimination claims. An employer may also be liable for taking adverse action against an employee or applicant with caregiving responsibilities for a child, spouse or parent with a disability because the discrimination was based on the employee or applicant's association with an individual with a disability.

Examples of family responsibility discrimination include:

  • Denying females with young children the same workplace opportunities as males with young children;
  • Reassigning a new mother to less desirable tasks assuming she will be less committed to her job;
  • Asking job applicants whether and when they intend to have children; and
  • Failing to promote an employee for fear that family caretaking responsibilities will interfere with his or her ability to perform the job.

2. Develop and Implement Policies

An employer should develop, implement and enforce policies that will protect caregivers and minimize the risk of an employment discrimination claim. Such policies include EEO policies (i.e., prohibiting discrimination, harassment and retaliation. EEO policies should define key terms such as caregiver and make clear that the definition of family may extend beyond children and spouses to include other family members in the individual's care. The EEO policy should also provide examples of common stereotypes about caregivers that may result in unlawful conduct as well as examples of prohibited conduct. Employees and supervisors should understand how stereotypes can lead to discrimination claims.

An employer should also consider developing other policies to support caregivers such as family and medical leave policies, policies regarding time off and leaves of absence, policies regarding sick leave and personal leave, employee scheduling policies, telecommuting policies, eldercare policies and benefits policies.  Additionally, an employer should make sure policies and practices with respect to compensation and performance do not have an adverse impact on caregivers and that workers are not punished for taking leave or time off.

All policies should be made part of the employee handbook and distributed to employees and made available on the employer's intranet.

3. Focus on Qualifications and Performance

An employer should make sure to focus on an applicant's or employee's merit, skills and qualifications; and the requirements of the position, rather than the fact that the employee has children, is a single parent or is responsible for the care of their elderly parent(s). The employee's qualifications and performance should be the focus at every stage of employment, including recruiting, hiring, promotion and retention.

4. Provide Training

It is important for an employer to conduct regular and consistent training sessions for employees and supervisors with respect to family responsibility discrimination and harassment so they know how to identify it and report it to management. An employer may also want to provide training on the FMLA, pregnancy discrimination, job-sharing, telecommuting and handling requests for flexible work arrangements. An employer should work to encourage a workplace environment of respect and tolerance with a positive attitude towards those who are caregivers or new parents. Further, supervisors should understand how, when, and to whom to forward reports of family responsibility harassment or discrimination, as well as how to informally encourage sensitivity and openness to various family caretaking responsibilities in the workplace.

5. Institute Complaint Procedures

An employer should make sure that there is a multi-channel complaint procedure in place that allows employees to report instances of family responsibility discrimination to various members of management. The complaint procedure should state that management is committed to promptly and fairly investigating complaints of discrimination, harassment and retaliation in a prompt and fair manner. The complaint procedure should assure workers that they will not be retaliated against for filing a complaint.

6. Investigate Complaints

It is essential to conduct a thorough and comprehensive investigation of family responsibility discrimination claims by interviewing the complainant, the alleged wrongdoer and any other potential witnesses and third parties, and by gathering documents and any relevant evidence. An employer should aim to keep the investigation confidential to the greatest extent permitted by law and provide information only to those who need it.

7. Coordinate With Employees on Reasonable Accommodations

It is essential for employers to be flexible and to coordinate with employees regarding caretaking duties and how and when such duties interfere with work. An employer may be obligated to provide reasonable accommodations to employees such as leave or time off, altered schedules, flexible work schedules, job sharing, telecommuting or other accommodations. By doing so, an employer will not only demonstrate that it is committed to maintaining an open and tolerant workplace, but it will also improve employee happiness and morale. Supervisors should be well-trained on how to effectively communicate with employees and handle requests for accommodations or changes to the work schedule, and aim to be open, flexible and solution-oriented.

8. Document Issues Properly

It is critical for the employer or a supervisor to document any issues or conversations with caregiving employees with respect to performance, excessive absences or any other work-related issues to maintain a proper record and evidence in case of a lawsuit. Likewise, it is important to document any agreements or arrangements entered into with respect to reduced hours, telecommuting, work hours, adjusted work schedules, etc.