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Family Responsibilities Discrimination – What you need to know

Family Responsibilities Discrimination (“FRD”) is a term for workplace discrimination based on biases about how employees with family and caregiving responsibilities should act. New research from the University of California, Hastings’ Center for WorkLife Law finds a 269 percent increase in lawsuits alleging family responsibilities discrimination in the last decade, compared to the previous decade. The Hastings’ Center Report attributes the rise in FRD claims to several factors, including: a rising number of households in which all adults work, a rising number of adults over the age of 65 who require care, and a rising number of family members with disabilities. Additionally, more men are becoming caregivers, and therefore requiring and requesting more accommodations from their employers. Here is a link to the Hastings’ Center’s Report:  http://worklifelaw.org/pubs/FRDupdate2016.pdf
Presently, there is no federal statute that expressly protects workers working for private employers from adverse employment actions based on their family caregiving responsibilities. However, there are several federal statutes that can be used to protect these workers. The most commonly used statutes are Title VII of the Civil Rights Act of 1964 (“Title VII”), the Family and Medical Leave Act (“FMLA”), and the Americans with Disabilities Act (“ADA”).

Family Responsibilities Discrimination and the ADA

In addition to prohibiting discrimination against a qualified individual because of his or her own disability, the ADA prohibits discrimination because of the disability of an individual with whom the worker has a relationship or association, such as a child, spouse, or parent. This type of discrimination is often referred to as “associational discrimination.” Under the associational disability discrimination theory, an employer may not subject an employee to disparate treatment based on assumptions about the employee’s ability to perform at work while also providing care to family member or other individual with a disability.

Family Responsibilities Discrimination and Title VII

Discrimination against employees with caregiving responsibilities is prohibited under Title VII if an employment decision is based on the employee’s gender. In 1971, in Phillips v. Martin Marietta Corp., 400 U.S. 542, the U.S. Supreme Court held that sex discrimination against working mothers is prohibited under Title VII even if the employer does not similarly discriminate against women without children. If an employer relies on stereotypes about gender and caregiver roles and makes employment decisions based on the assumption that female employees are less dependable than male employees because of caregiving responsibilities, discrimination has occurred. Men are also protected from gender discrimination under Title VII and may also be the victims of FRD. A parallel exists between stereotypes about men and women and their domestic responsibilities. Since most employers tend to continue to consider family needs as a woman’s territory, men are often denied similar or comparable accommodations, like time away from work to care for a child or ailing parent.

Family Responsibilities Discrimination and the FMLA

In addition to providing up to 12 weeks per year of job-protected, unpaid leave for an employee, the FMLA also provides for 12 weeks off work to care for close family members, including a spouse, child, or parent. The FMLA applies equally to male and female employees. If the employee has taken FMLA-protected leave, discrimination that occurs after the leave can be redressed through the anti-retaliation provisions of the FMLA, which provides for awards of lost wages and benefits, as well as, liquidated damages in some cases.

 

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