WorkLife Law Blog

The EEOC today issued a document suggesting ways for employers to avoid FRD claims (Employer Best Practices for Workers with Caregiving Responsibilities, Apr. 22, 2009).

The document was issued at a Commission meeting that featured statements by Dianna Johnston, EEOC OLC Assistant Legal Counsel, Dr. Heather Boushey, Senior Economist, Center for American Progress, Karen Minatelli, Director of Work and Family Programs, National Partnership for Women and Families, Jeffrey Norris, President, Equal Employment Advisory Council, and Cynthia Calvert, Deputy Director, WorkLife Law. The panelists, whose statements are available online, praised the best practices document and noted that the need for the best practices guidance was particularly strong in light of the current recession.

The best practices document supplements the EEOC's 2007 Caregiver Discrimination Guidance and provides suggestions for actions employers can take to reduce discrimination against employees who have family caregiving responsibilities. The suggested best practices include:

• Training managers about laws that protect caregivers;
• Developing and enforcing a policy that states the employer will not discriminate against employees based on their caregiving obligations;
• Ensuring managers copmly with the company's work/life policies;
• Responding effectively to complaints of caregiver discrimination;
• Protecting employees who complain of discrimination from retaliation;
• Reviewing existing personnel policies to ensure they do not disadvantage caregivers;
• Making overtime as family-friendly as possible;
• Reassigning job duties that employees are unable to perform because of pregnancy or other caregiving responsibilities;
• Providing reasonable personal or sick leave to allow caregiving;
• Developing the potential of all employees, including caregivers; and
• Providing support and resources to assist employees with caregiving.

The new document includes the actions WorkLife Law has suggested that employers take to prevent FRD claims. To assist employers, WorkLife Law has created a model policy that states that the employer will not discriminate against family caregivers, and has customizable trainings for managers, supervisors, HR professionals, and legal counsel. In addition, WorkLife Law provides periodic employer alerts on topics related to family responsibilities discrimination, and is available to answer employer questions.

WorkLife Law and the Sloan Work and Family Research Network at Boston College have released a new research brief for state policy makers, entitled Addressing Family Responsibilities Discrimination. The brief describes state policy efforts to address family responsibilities discrimination (FRD)—employment discrimination based on an employee’s family caregiving responsibilities—including statistics on FRD, why FRD is a policy matter, and how FRD negatively impacts both employees and their employers.

The brief also details recently proposed state legislation on FRD—the first research of its kind to do so—including information on legislative proposals in eight states (CA, FL, IA, MI, NJ, NY, PA, MT) and New York City that relate to FRD.

Both the research brief and a press release about it are available on the WorkLife Law website.

Looking for a way to test your knowledge of FRD? Checkout HR Hero’s FRD Quiz at http://www.hrhero.com/hriq/index.cgi?FRD. It is a quick five-question test that covers many of the typical workplace circumstances that can give rise to an FRD claim. The quiz also highlights not only employers’ legal obligations to their employees with caregiving responsibilities but employers’ rights as well. The quiz is well worth the eight to ten minutes it takes to complete.

For more information about FRD generally and resources for employers and their attorneys visit the Center for WorkLife Law’s website at www.worklifelaw.org.

The Center for WorkLife Law (WLL) works with any and all groups interested in FRD – employees, employers, journalists, legislators, and researchers. For employers, WLL has developed a number of resources, including prevention checklists, key case lists, monthly e-mail alters, and training programs, for employers and their attorneys. A rapidly growing number of management-side attorneys and human resources consultants have begun advising employers that a focus on prevention is critical.

In addition to a number of teleconferences sponsored by such groups as Lorman, West LegalEd, ALI-ABA and the Labor & Employment Section of the ABA featuring management employment attorneys’ articles are starting to stream in. One such article, Family Responsibilities Discrimination: Making Room at Work for Family Demands, recently came across my e-mail. The author, Daniel J. Finerty, an attorney at Krukowski & Costello S.C., in Milwaukee, correctly points out the FRD is here to stay. Employees’ family responsibilities have changed dramatically in the last 30 years. Many families are dual income households with both men and women taking responsibilities for child and/or elder care. Accordingly, employers’ views about family and work need to evolve with the times or they will face significant liability for FRD claims. Finerty lays out a number of excellent suggestions for preventing FRD claims that are based on many of the things employers already do to prevent other types of employment claims such as training, modifying existing employment policies and basing decisions on objective criteria.

I am interested in reading more FRD articles written by employers or management employment attorneys and in hearing what employers are doing to prevent FRD in their workplaces. If you are aware of any articles or prevention strategies, please pass them on.

Consuela Pinto
Senior Counsel
Center for WorkLife Law

I have been traveling relentlessly; six speeches in the twelve days. Here's one story I heard:

A Gen-X lawyer told me he was working with a new client, who expressed impatience with younger workers who wanted to telecommute. The lawyer held his peace, but months later, when he got to know the client better, he confessed that, the day the client made that comment, he was telecommuting -- at home with a sick child. "Did that affect the advice I gave you?," he asked. The client acknowledged it hadn't; by that time, his attitudes had changed a lot.

Young men are changing the workplace, little by little.

Over the weekend, California Governor Arnold Schwarzenegger vetoed SB 836 (Kuehl), a state bill that would have prohibited employment discrimination based on a worker’s “familial status,” including some family caregiving responsibilities.

SB 836 was an anti-discrimination measure and not a preference statute. It did not grant family caregivers any additional entitlements. Rather, the bill was designed to clarify and fill in gaps in the law, so that California workers could not be singled out and treated worse at work based on their family caregiving responsibilities. Consider the case of California firefighter, Derek Tisinger, a single father, was passed over for a promotion for using his employer’s shift trading policy to trade shifts to allow him to care for his three sons. Other workers who traded shifts for non-family reasons were not penalized. When Tisinger sued, the court held that, even though he was treated worse because of his family responsibilities, that treatment wasn’t illegal under state law. (See Tisinger v. City of Bakersfield, 2002 WL 275525 (Cal. Ct. App., 2002).)

As WLL documented in its 2006 report, Litigating the Maternal Wall, some employees are already suing their employers—and winning—for family responsibilities discrimination under a wide array of legal theories, often taking their employers by surprise. SB 836 would have provided employers with some much needed guidance and, if nothing else, a “heads up” about the potential liability that may exist in their workplaces.

From time to time, we come across noteworthy new FRD cases we like to pass along. Here's one that raises several interesting issues (and probably some eyebrows, too):

Children’s Hospital in Boston, a major teaching hospital of Harvard Medical School, apparently does not want plastic surgeons who are mothers. It tried to make the first and only female plastic surgeon ever hired by the hospital quit, and when she wouldn’t, she was fired, according to a discrimination charge filed last week.

Highlights: The female plastic surgeon is a mother who worked part-time. The new Chief of Plastic Surgery informed her that he was eliminating “all” part-time surgeons to create a “world class” surgery department, although the mother was the only part-time plastic surgeon. The Chief’s reference to “all” referred to the mother and to two men with full-time private practices who used Children’s facilities on a part-time basis but who were not Children’s employees as the mother was.

The Chief offered the two male plastic surgeons full-time positions with Children’s, enticing them with financial incentives. The plastic surgeon/mother, on the other hand, says she was rebuffed when she offered to become a full-time surgeon in order to retain her position. In addition, she says, the hospital harassed her in an attempt to force her from the plastic surgery department and to shut down her practice by taking away her patients, removing her voicemail and directory information so she couldn’t be contacted, interfering with her billing for office visits, and making disparaging comments about her.

The Chief of Plastic Surgery defines a “full-time” surgeon as one who puts in face time of least sixty hours per week. His own wife is a doctor who stays home full-time with their children, WLL has learned.

The plastic surgeon/mother was replaced by a less qualified male who is now operating part-time because he has a research position on the side -- which was one of the proposals the plastic surgeon/mother had made to the department for herself that was rejected.

The allegations get worse: when the plastic surgeon/mother did not resign, the hospital and the department threatened to retaliate against her for stating that she was being treated unfairly because of her gender and status as a mother. They then carried out these threats by summarily terminating her from her job, taking away her scheduled operating and clinic time, and withholding revenues that she had already earned.

We'll be keeping a close eye on this one.