Wednesday, April 18, 2007
EEOC Commissioners Hold Meeting to Discuss FRD
The experts' remarks are available online and are well worth reading. A few highlights follow, but with apologies to the experts because this brief summary does not do justice to their work:
Heather Boushey framed the discussion by providing demographic information that shows that workers with family care responsibilities are not, as the common wisdom would have it, "exceptional workers" -- rather, they are the norm.
Jennifer Tucker testified that her Center has studied the combined impact of race and gender in the workplace (most studies have looked at only one or the other). Their research shows that women of color who are also caregivers are treated differently from white women when asking for time off for family-related reasons. Thus, she observed, situations that start out being work/life situations can quickly become racial disparate treatment situations.
Elizabeth Grossman provided compelling examples of Title VII and ADA Association clause lawsuits brought by the EEOC on behalf of caregivers in the New York district, and discussed pending caregiver litigation. She said that the EEOC is starting to see more cases being brought by men, including cases in which men are not getting family-related leave and benefits routinely given to women. They are not seeing many cases involving elder care (author's note: those tend to be brought under the FMLA, over which the EEOC does not have jurisdiction). She also discussed the need for more training about FRD for EEOC investigators and attorneys.
Zachary Fasman discussed legal issues surrounding FRD. He noted that Congress has not expressly outlawed discrimination against employees who have family responsibilities (author's note: not yet, at least), but acknowledged that FRD is sex discrimination under Title VII where employees are treated based on sex stereotypes or treated disparately based on gender. He also stated that FRD is not a unified concept, but an amalgam of different legal theories, which makes it a difficult concept. He concluded by saying that employers would do well to prohibit FRD in their workplaces and provide training for their managers on how to prevent it.
Joan Williams described how the maternal wall (discrimination against women because they are or may one day become mothers) affects workers in every industry and at every level from hourly workers through executives. She set out the many ways maternal wall bias is manifested in the workplace, providing compelling evidence from actual cases, and called on the EEOC to issue policy guidance to educate employers about FRD.
In response to the Commissioners' questions, Professor Williams and Mr. Fasman debated the current state of FRD caselaw under Title VII, and ultimately agreed that "sex plus" is an outdated concept that isn't necessary or helpful as a theory for bringing FRD cases. The two also agreed that "loose lips" cases -- cases in which supervisors make blatantly discriminatory remarks such as "I'm terminating you so you can stay home with your baby" and "I don't see how you can be a good worker and a good mother" -- will likely become less prevalent in the future and the courts will see more pretext-type cases.
Watch the EEOC website for a transcript of the meeting and for notices of future meetings on this important topic.