WorkLife Law Blog

Remember the days when employment ads were classified as “help wanted-female” and “help wanted-male”? Seems so quaint now, doesn’t it?

What doesn’t seem quaint is the current-day version: “help wanted-no childcare concerns.”

That’s for real. Silver Spring Dream Dinners placed an ad for part-time help that specifies the applicant must have own transportation, be able to work 10-20 hours per week (including evenings and weekends), be able to lift 50 pounds, and have “no school or childcare concerns.” Huh? Does that say mothers of young children need not apply? It sure sounds it. Dream Dinners might as well have said “the only people who can work here are those who don’t have young children.” After all, no parent could state with certainty that he or she has no childcare concerns. Kids get sick, blizzards happen, holidays crop up.

What makes this more surprising is that the ad is for an organization that makes its money catering to busy parents who work outside and inside the home, and the ad was placed on a mailing list, DC Urban Moms (and Dads), that is directed at parents of young children. What would the clientele say if they knew that the company discriminates against parents?

Dream Dinners might protest that it doesn’t mean to discriminate, that it just wants dependable workers who aren’t going to be pulled away by childcare emergencies. Yup, and the companies that hired only men circa 1965 just wanted competent, dependable workers who had someone at home full-time to take care of the family work. The problem with this type of thinking – aside from the fact that it is based on stereotypes and is unfair – is that it perpetuates work structures that are set up as if the norm is the unencumbered male.

Moreover, it is downright illegal. Dream Dinners would surely argue that at most it has discriminated against parents and that parents are not a protected category under state (Maryland) or federal law. Unfortunately for Dream Dinners, it is located in Montgomery County, which expressly prohibits “family responsibilities” discrimination in employment. The county ordinance defines “family responsibilities” as “the state of being financially or legally responsible for the support or care of a person . . . .” That certainly sounds like a person who might have childcare concerns, doesn’t it?

Note to Dream Dinners: You might want to reconsider your ad – and create a more flexible work environment – before your customers and the authorities find out.

WorkLife Law is delighted to announce that we’ve received a generous new grant from the W.K. Kellogg Foundation to expand our work on issues of work/family conflict across class. The grant will allow us to further document how work/family conflict affects low-wage workers and working-class families, building upon our recently released report, The Three Faces of Work-Family Conflict: The Poor, the Professionals, and the Missing Middle (jointly published by WorkLife Law and the Center for American Progress). With the support of the Kellogg Foundation, we will conduct new research and writing on how work-family conflict is a major driver of the poverty that many low-income families experience, to add work/life issues to conversations around poverty advocacy. We will also convene a working group of advocates and social scientists to cull the latest research and develop best practices for workplace flexibility in hourly and low-wage jobs. Our great thanks to the Kellogg Foundation for their support.

A new report by WorkLife Law provides a detailed picture of the current state of FRD litigation, including a 400% increase in the number of cases filed and an average verdict of more than $500,000. The report also describes common fact patterns that lead to FRD claims, shows the number of FRD cases filed in each state, and provides numerous case examples. The report can be downloaded here.

Excerpt from the press release:

Costs of Caregiver Discrimination Increasing for Employers

New Report Says Family Responsibilities Discrimination Cases on the Rise, Cost More

Treating employees less favorably because they have family caregiving obligations can land employers in court and result in significant liability, a new report by the Center for WorkLife Law concludes.

Litigation aimed at bias against U.S. workers who care for children or aging parents has increased 400% in the past decade and the average verdict now tops $500,000, WorkLife Law says. Cases have been brought in every state and every industry, and against large and small employers. Employees prevail in about half of the cases – significantly more frequently than in other types of employment cases.

Employer actions that have resulted in verdicts include:

· Selecting an employee for layoff because she was pregnant;
· Denying a promotion to a female employee because she was the mother of young children;
· Firing a male employee who was on approved leave to care for a foster child;
· Instituting production quotas that could not be met by a male employee on intermittent leave to care for his seriously ill parents, and then firing him for not meeting the quotas.

“Laws are broken when supervisors make assumptions about the value of employees based on their family caregiving responsibilities and then take negative personnel actions, regardless of the employees’ actual performance,” said the report’s author, Cynthia Thomas Calvert, Deputy Director of WorkLife Law.

“Fortunately, employers can protect themselves against these lawsuits,” Calvert continued. “A good prevention program includes training supervisors so they can recognize the assumptions and be prepared to react in a more appropriate way.”

The report, Family Responsibilities Discrimination: Litigation Update 2010, is based on an analysis of over 2100 cases. Most cases reviewed were related to pregnancy and maternity leave (67%). Other cases related to elder care (9.6%), care for sick children (7%), care for ill spouses (4%), time off for newborn care by fathers or adoptive parents (3%), and care for a family member who has a disability (2.4%). Most cases (88%) were filed by women; 12% were filed by men. The report is available on WorkLife Law’s website, www.worklifelaw.org.

Family responsibilities discrimination is discrimination against employees who have family caregiving obligations, such as pregnant women, mothers and fathers of young children, and workers with sick or aging parents. Some state and local laws prohibit this kind of discrimination outright. Employees also use a variety of state and federal anti-discrimination and family leave laws to sue their employers. Many of the cases studied for the report involved the use of the federal sex discrimination law, Title VII of the Civil Rights Act of 1964, and the federal Family and Medical Leave Act.

In 2007, the U.S. Equal Employment Opportunity Commission issued enforcement guidance about caregiver discrimination that detailed how Title VII protects employees from discrimination based on family responsibilities.

Today the Center for WorkLife Law (WLL), in conjunction with the Center for American Progress (CAP), released a groundbreaking report on work-family conflicts across class.

The Three Faces of Work-Family Conflict: The Poor, the Professionals, and the Missing Middle is the first of its kind report to comprehensively document how work-family conflict affects poor and working class people, instead of focusing exclusively on professional women “opting out” of the paid workforce. It provides concrete demographic data on income changes over time from CAP Senior Economist and report co-author Heather Boushey. In addition, the report provides extensive research by WLL Director and report co-author Joan Williams on how work-family conflict affects families differently based on where they—and the type of jobs they have access to—fall on the income spectrum.

After painting a picture of working families in the United States today, the report sets out a policy agenda to tackle work-family conflict that is universal in its appeal, not only to working families of all classes, but that can work for employers while providing needed supports to their employees, too. Given President Obama’s commitment to addressing work-family conflict—including his plans to address new child care policy initiatives in his state of the union address—the report aims to identify a policy agenda that can help reduce work-family conflicts for employees in ways that are workable and help employers’ bottom lines.

Click here to read the full report: The Three Faces of Work-Family Conflict: The Poor, the Professionals, and the Missing Middle.

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.