Is there a type of employment discrimination that is not identified as a protected class in most equal opportunity statements, and is not specifically prohibited by federal statutes?    The unnerving answer is yes, and it is called family responsibility discrimination.  While the number of employment discrimination claims being litigated is declining, family responsibility discrimination claims have increased by 400% in the last decade, have success rates for employees at over 50%, with average verdicts exceeding $500,000.[1]  The purpose of this article is to assist employers in identifying family responsibility discrimination in order to take appropriate action to avoid liability.

Family responsibility discrimination (“FRD”) is discrimination against employees based on their responsibilities to care for individuals such as a child, aging parent, or a person with disabilities.  It occurs when an employer takes an adverse employment action against an employee or job applicant based on assumptions about their ability to perform work related duties and responsibilities due to their status as a caregiver, regardless of their performance or qualifications. 

Here are some examples of situations which lead to successful FRD cases against an employer: 

Female store manager with children was passed over for promotion while men and women with no children were promoted instead. 

Male employee who was taking intermittent family leave to care for his dying mother and father who had Alzheimer’s disease was terminated for failing to meet newly imposed production quotas. 

A woman employee whose child was born prematurely with a disability, submitted significant claims under the employer’s group medical plan.  The employer admitted firing the employee due to high insurance costs associated with the child’s illness. Although there was no violation of laws prohibiting discrimination based on pregnancy or gender, the court found that the employer’s action violated Employee Retirement Income Security Act (“ERISA”) by interfering with the employee’s right to insurance benefits. 

What are the chances that a California employer could be sued for FRD?  Currently, there are no state or local laws explicitly prohibiting FRD in California, but there are 63 laws in 22 states which expressly prohibit FRD[2].  In 2007 and then again in 2009, legislation was proposed in California to expand the Fair Employment and Housing Act to include familial status as an additional basis of discrimination.  The 2007 bill got as far as passing the State Assembly and Senate before being vetoed by Governor Schwarzenegger.  Given California’s tendency to enact state and local laws which expand the protections of federal employment laws, there is a distinct likelihood that FRD laws will be enacted in the foreseeable future in California.  

Even if an employer is in a jurisdiction where there are no laws specifically prohibiting FRD, successful FRD claims have been based on federal statutes which prohibit discrimination based on sex, race and disability discrimination, ERISA, and leave laws such as the Federal Medical Leave Act and California’s Pregnancy Disability Leave law.  There is also some evidence that the federal administration will be focusing on FRD enforcement.  In a recent employment law conference, Stuart Ishimaru, the acting chair of the Equal Employment Opportunity Commission (“EEOC”) predicted that FRD will be “front and center” for EEOC enforcement.  The EEOC has also issued enforcement guidelines for FRD in 2007 and, more recently, a best practices guide for employers regarding FRD prevention in 2009. 

Demographic trends also indicate a growing possibility for employers of being sued for an FRD claim.  In a historic first, women are projected to comprise more than half of the US workforce by the end of 2010 while census data indicates that women with small children are twice as likely to be working as they were 30 years ago.  Despite this increase in workforce participation, women continue to be most families’ primary caregivers.  At the same time, the amount of time that working men devote to childcare has tripled since 1965, and one in four US workers are involved in eldercare.  In addition, a third of all families have at least one family member with a disability and most of the men and women who provide care to relatives and other individuals with a disability are employed.  Based on these statistics, there will continue to be many caregivers in the work force. 

Given these legal, enforcement and demographic trends we strongly recommend that all employers review and revise their policies against discrimination and harassment to include examples of prohibited activity directed at caregivers.   Managers and supervisors should also be trained to evaluate employees based on performance rather than their status as a caregiver and to seek assistance from Human Resources when appropriate.  Multi-state employers should carefully review the existing FRD laws in states and local governments where they have employees.   Taking these proactive measures should reduce the possibility of your Company becoming the next target for a claim of family responsibility discrimination.