WorkLife Law Blog

The EEOC today issued Enforcement Guidance about caregiver discrimination. The guidance provides an excellent overview of disparate treatment and stereotype discrimination cases, with plenty of illustrative examples throughout. Employers, employees, and employment law attorneys will benefit from reading it over.

Here's the press release issued today by WorkLife Law:

EEOC Gives Boost to Mothers and Other Family Caregivers

SAN FRANCISCO, CA – Discrimination against mothers and other workers who have family caregiving responsibilities is rampant in many workplaces. Employers who harass, pass over for promotion, and even terminate workers because they care for young children or sick parents have been sued with increasing frequency and have been paying increasing amounts in verdicts. Today, the EEOC took an important step toward ending this discrimination by issuing enforcement guidance that will educate employers and employees about caregivers’ rights and responsibilities.

The Guidance advises that discrimination can take the form of different treatment of men and women with young children, such as selecting fathers but not mothers for a training program. It also advises that discrimination can take the form of stereotyping, such as giving less desirable assignments to mothers on the assumption that they are not as committed to their jobs. Examples of common scenarios for discrimination are provided throughout. The Guidance can be viewed on the EEOC’s website at www.eeoc.gov/policy/docs/caregiving.html.

The Center for WorkLife Law, which has spearheaded the study of caregiver discrimination for almost ten years, has actively sought guidance from the EEOC on discrimination against family caregivers. Joan Williams, the founding director of WorkLife Law and Distinguished Professor of Law at UC Hastings College of the Law, testified at an EEOC Commissioners Meeting on April 11, 2007 about the causes of the discrimination and the various ways caregivers are discriminated against in the workplace. These include:

firing pregnant employees because they will take maternity leave;

giving promotions to women without children or fathers rather than to more qualified mothers;

giving parents work schedules that they cannot meet for childcare reasons while giving nonparents flexible schedules;

harassing and penalizing workers who take time off to care for their aging parents or sick spouses or partners; and

fabricating work infractions or performance deficiencies to justify dismissal of employees with family responsibilities.

WorkLife Law has compiled a database of over 1,000 cases involving discrimination against family caregivers, also called family responsibilities discrimination. Last year, it issued a report showing a 400% increase in the number of cases filed by caregivers against their employers over the prior decade, and it has created a list of case outcomes that includes 80 verdicts and settlements over $100,000. The largest verdict for a single employee was $11.65 million, given to a man who was terminated after he took time off to care for his aging parents.

While no federal law expressly prohibits family responsibilities discrimination, it is prohibited by statute in Alaska and the District of Columbia and for federal employees and contractors by Executive Order. Some cities and counties also have laws making family responsibilities discrimination illegal. State legislatures in California and New York are currently considering bills that would also outlaw discrimination against family caregivers. At present, employees sue under existing statutes, such as the Pregnancy Discrimination Act, the Family and Medical Leave Act, and the sex discrimination prohibitions contained in Title VII of the Civil Rights Act of 1964. The lack of a single statute addressing the issue has made it difficult for employers to understand and prevent the discrimination in their workplaces.

“Discrimination against employees with caregiving responsibilities is one of the most blatant forms of discrimination today,” said Williams. “It is clear from our work that employers and employees need exactly the type of guidance that the EEOC has offered today. The Guidance is a strong step toward eliminating this type of discrimination.”

WorkLife Law has created resources for employers to help them stop caregiver discrimination, including a fact sheet, a model policy, trainings for supervisors, and legal briefings for attorneys who represent companies. It also has resources for employees who think they may be facing discrimination because of their family responsibilities, including educational materials, a hotline, and a network of attorneys who represent employees. WorkLife Law has also published the only treatise on this subject, WorkLife Law’s Guide to Family Responsibilities Discrimination (WLL Press 2006), and provides information to legislators, judges, journalists, academics, and others.

The Center for WorkLife Law is based at the University of California Hastings College of the Law in San Francisco and is directed by Joan C. Williams, Distinguished Professor of Law. It was founded as the Program on Gender, Work & Family at American University Washington College of Law in 1998 and is supported by research and program development grants, university funding, and private donations. More information is available at its website, www.worklifelaw.org.

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Mother's Day has become a prime time for reflecting on the state of working mothers. Here are links to two items that are not to be missed:

CBS Evening News Eye to Eye: Interview with Pam Stone

Ellen Goodman's May 11th Boston Globe column, "A third gender in the workplace"

Joan Williams and Cynthia Calvert gave a presentation at an ALI-ABA conference last week in Boston, and a question came up about how many sizable verdicts have been awarded in Family Responsibilities Discrimination cases. Here are the stats, which come from our ever-growing database of FRD cases (now over 1,000 cases):

80 verdicts/settlements at or over $100,000
10 verdicts/settlements at or over $1,000,000
largest multiple-plaintiff award (settlement): $49 million
largest single-plaintiff award (verdict): $11.65 million

Of course, not every FRD case concludes with stratospheric damages. It is important for companies and attorneys to be aware of the potential for large recoveries, however, so they can correctly value FRD cases they may be facing.

WorkLife Law is compiling a list of verdicts and settlements that will be available on its website in the near future.