Posted by: Professionals In Human Resources Association (PIHRA) | January 24, 2010

Some new letters for your alphabet soup: FRD – Family Responsibility Discrimination

By Mindy S. Novick
Los Angeles Office of Jackson Lewis LLP

As human resources professionals you know all about Title VII, FEHA, PDA, PDL, ADA, FMLA and CFRA. You have it covered, right?  Maybe not.

What is FRD?
You are probably asking yourself, who or what isn’t already covered by existing laws.  The answer is Family Responsibility Discrimination or FRD.  FRD is generally defined as discrimination against employees based on their responsibilities to care for family members.  It goes beyond pregnancy discrimination or denying FMLA-based leave.

Have managers ever said to you:
“We shouldn’t promote Mary to the supervisor position.  I’m concerned about her ability to juggle her job and caring for her children; I don’t think she’s a good fit.”

“I just found out Joan is having a third child.  I don’t think she’ll be able to handle her job with so many children.”

“I don’t think Dave is interested in the promotion.  He has a sick wife and probably wouldn’t have the time for the increased responsibilities.”

“I prefer hiring women without children.”

“Ted asked for time off to take care of his parents.  I don’t want to set a precedent so I told him no.”

Those kinds of assumptions may result in a lawsuit for your company.

Current Legislative Picture

While federal and state legislators have been slower to recognize family responsibility or caregiver discrimination, there are at least 63 local governments in 22 states that have enacted FRD laws.  Those local governments are in the following states: AL, AZ, CO, FL (including Miami-Dade County, Tampa and Palm Beach County), GA (Atlanta), IL (Including Chicago), ID, KS, KY, MD, MA (including Boston), MI, MN, MS, NJ, NY, OH, OR, PA, TX, WA, WI (including Milwaukee).

In 2007 a bill to add “familial status” as a protected category under FEHA passed the entire California state legislature but was vetoed by the Governor.  A similar bill was introduced in 2009 and is active – in committee.  (2009 CA A.B. 1001) The proposed bill defines “familial status” as having or caring for a child, domestic partner, grandchild, grandparent, parent, parent in-law, sibling or spouse.

Just because no federal law expressly prohibits family responsibility discrimination, don’t think the EEOC isn’t interested.  In 2007 the EEOC issued “Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” In 2009 the EEOC returned to the subject, issuing guidance on “best practices.”

What You Can Do To Protect Your Organization

Even without a specific law addressing caregiver discrimination, employees have successfully sued on the bases of gender discrimination, leave-related retaliation, and disability discrimination among other legal theories.  Therefore, employers should consider adopting practices to reduce the risk of caregiver discrimination and to aid in recruitment and retention of employees.  Such best practices include:

  • Train managers about the legal obligations that relate to employment-related decisions.
  • Make sure you have an EEOC policy that is disseminated not just upon hire, but periodically, is readily available to employees and is enforced.

Your EEO policy should include:

  • Employees with caregiving responsibilities as a protected group
  • Give examples of the stereotypes or biases that lead to discriminatory decisions
  • Give examples of prohibited conduct
  • Prohibit retaliation against an employee who raises concerns of caregiver discrimination
  • Consider work-life policies.  Do you allow flexible schedules, job sharing, telecommuting, voluntary versus mandatory overtime, personal or sick leave other than that required under the FMLA?
  • Make sure you focus on qualifications – not how many children the applicant has or plans to have – when hiring, promoting, selecting for training, or doing performance evaluations.
  • Make sure listed job qualifications truly reflect the job requirements.
  • Advertise job openings in places for people likely to be looking for flexibility or for those returning to the workforce (for example, parenting magazines or AARP website).
  • Don’t automatically rule out applicants with breaks in their work history on the assumption that family responsibilities are more important than the job.

Mindy S. Novick is a Partner in the Los Angeles Office of Jackson Lewis LLP and can be reached at (213) 630-8236 or novickm@jacksonlewis.com.   Founded in 1958, Jackson Lewis is dedicated to representing management exclusively in workplace law with 600 attorneys practicing in 45 cities nationwide.  To learn more, please visit us at http://www.jacksonlewis.com.

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Responses

  1. What are the current laws in Wisconsin?


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