Overview
Caregiver discrimination, also called Family Responsibilities Discrimination (FRD), is discrimination against employees because they care for family members. Caregiving employees include mothers and fathers of young children, pregnant and lactating employees, and employees with family members who need their care due to serious illnesses, disabilities, or advanced age. Some examples of FRD include:
- Creating reasons for terminating a woman because she is pregnant;
- Refusing to hire an applicant because she has a child with a disability;
- Not promoting a man because he works from home on days his child is sick;
- Giving poor performance evaluations to a man because he uses family medical leave twice a month to take his mother to chemotherapy;
- Not considering a woman for a leadership position because she has preschool-aged children.
Almost every employee will be a caregiver at some point during their career. A study shows that 73% of employees are currently providing care for someone. New laws are increasing employers’ exposure to lawsuits. Companies are facing increasing liability from FRD, with some verdicts in the millions. Experts predict that the aging American population and changes in the workforce will require employers to learn how to manage caregiving employees. Get it right and your organization will flourish. Get it wrong and lawsuits may be the least of your worries.
FRD and the Law
While there is no single federal law that prohibits family responsibilities discrimination, several federal laws and numerous state and local laws forbid employers from treating workers differently because they have caregiving obligations. This legal patchwork makes it difficult for employers to understand and comply with the law. Here are some key laws [Link to the Key Laws page] to know:
- Most FRD cases involve pregnancy claims, including claims related to pregnancy accommodations, recent maternity leave, pregnancy complications, and plans to have children. The federal laws that prohibit pregnancy discrimination apply to employers that have 15 or more employees, but many states have similar laws that apply to smaller employers.
- Many FRD cases involve leave to care for sick family members, taken either in one continuous block or in smaller segments on an intermittent basis. Claims arise when employees believe they have been denied leave to which they are entitled, or they have been retaliated against for taking leave. The key federal statute involved in these cases is the Family and Medical Leave Act, which applies to employers of 50 or more employees and covers employees who have worked for the employer for a year and for 1250 hours in the prior year. The Americans with Disabilities Act and the Pregnant Workers Fairness Act may also play a role. Many states have leave laws as well, some of which apply to smaller employers. The federal and state laws are complicated, and it is easy to make mistakes.
- A large number of FRD cases involve sex discrimination claims under the federal Civil Rights Act of 1964, also known as “Title VII.” These types of claims usually involve sex-based assumptions, such as women shouldn’t get training opportunities because they just have children and quit or men who are actively involved in childcare are not dependable, or sex-based differential treatment such as promoting men with children but not women with children. Title VII applies to employers of 15 or more employees, but many states have similar laws that apply to smaller employers.
- A smaller number of FRD cases involve “disability association” claims, such as women not being promoted because they have children with disabilities or men not being hired because they have a spouse with a disability who will need care and incur high medical bills. The federal Americans with Disabilities Act prohibits discrimination based on association with a person with disabilities, and applies to employers of 15 or more employees. Some states have laws that include associational discrimination and apply to smaller employers.
- In addition to these statutes, common law claims such as wrongful discharge, intentional infliction of emotional distress, breach of contract, tortious interference with contractual relations, and promissory estoppel have been brought by employees who believe they have been discriminated against because of their caregiving responsibilities.
Employers need to make sure their human resources and legal professionals understand how these laws apply to family caregivers and can train and advise managers and supervisors. Legal missteps aren’t just expensive – they can significantly disrupt business.
How and why FRD arises in the workplace
Discrimination against caregivers can take many forms: refusing to hire, not providing opportunities for training necessary for advancement, not giving evaluations that are unjustifiably negative, not socializing, providing resources or sales leads necessary to performance, making sarcastic or belittling jokes, being overly critical of work product, scrutinizing attendance, refusing to promote, disciplining for minor infractions or for infractions that others are not disciplined for, making negative comments, building a case for termination, placing on undesirable assignments or work shifts, transferring to a less desirable location, demoting, removing responsibility, and terminating – just to name a few.
Typically, the negative treatment starts once it becomes known in the workplace that an employee has become or is about to become a caregiver: when a pregnancy is announced, when news of an employee’s parent’s illness spreads, when adoption papers are finalized. It can happen to men and women alike, and the treatment usually comes from both male and female supervisors.
Of course, negative treatment doesn’t happen to all caregivers. When it does, it creates many problems for the employer, including reduced productivity caused by distraction and stress, erosion of collegiality and teamwork, and loss of experienced employees who are forced out of their jobs. That’s on top of potential legal liability. So the question becomes: why does FRD happen?
Discrimination against caregivers usually arises because of unexamined assumptions about how they will or should act. For example, a supervisor may assume that a woman will not be as good an employee after she becomes pregnant. Or the supervisor may assume a woman will no longer be committed to her job once she becomes a mother or that a father who works flexibly is not ambitious or a team player.
There are several problems with these assumptions. First, they typically influence supervisors’ decisions without the supervisors even being aware of them. Why does the supervisor choose Single Sam over Married Martha to attend a leadership development conference? Could it be that the supervisor is influenced by the unexamined assumption that it isn’t worth investing in female employees because they get pregnant and quit?
Second, the assumptions can lead to negative treatment regardless of whether they are true. They often influence decisions before the feared problem with performance comes to pass – and it may never come to pass. Married Martha may not have children, and if she does, she may be just as committed and productive and dependable as she’s always been.
Third, the assumptions can be self-reinforcing and do long-term damage to the workplace. For example, if supervisors assume that women have children and quit, and all the women are therefore treated poorly, women will feel that the stress of trying to juggle work and family isn’t worth it – so they will quit. With all the mothers quitting, women will get the message that they can’t have a family and work for that employer.
Steps to Prevent FRD
The good news about FRD is that it can be prevented. The basic steps are assessing FRD in your company, training everyone about FRD and its causes, reviewing policies and procedures, monitoring for effects, aligning culture and creating a complaint resolution process.
Assessment
Knowing where FRD lurks in your company is important. Lawsuits are an obvious tip-off, but less drastic signs can include no caregivers in upper management, high attrition among caregivers, complaints by and about certain supervisors involving leave, evaluations of caregivers that are more negative that those of non-caregivers, negative comments about families in small talk, stunted career paths for caregivers, lack of flexible work programs or few flexible workers, and disproportionate discipline against caregivers.
Training
Training everyone, but particularly HR and legal professionals and anyone who supervises another worker, is the key step in FRD prevention. Training should include what FRD is, the causes of FRD, examination of common assumptions, alternative responses in situations where problems typically arise, the business case for preventing FRD, individual and organizational responsibilities for addressing FRD, best practices for managing caregivers, how to respond to complaints and the laws that prevent FRD.
Policy Review
Some company policies or procedures may have a negative impact on caregivers, such as policies that prevent leave during the first year of employment or that require relocation for promotion. Hiring and promotion criteria, compensation and bonus guidelines and flexible work programs typically need to be examined as well. Some experts recommend including FRD in company EEO policies.
Monitoring
It is important to monitor new hires, compensation decisions, promotions, evaluations, discipline, terminations, and the like for effects of FRD.
Culture
Workplace culture is key to employee engagement, productivity and loyalty. Companies succeed when they have low drama, collegial environments where all employees feel valued and part of the team. Making support for caregivers a shared value will ensure that the FRD prevention program has the desired effects. After all, almost everyone will be a caregiver at some point.
Complaint process
HR needs to know, before a complaint arises, how to handle it. Understanding common triggers and patterns of FRD will help with the investigation and response. An effective complaint process may prevent a lawsuit, but even if it doesn’t, it may limit the damages a company has to pay.
Having an FRD prevention program customized to fit the needs of your company is vitally important. A small investment in assessing, training, and implementing procedures can save huge legal bills. Even more importantly, a well-designed program can enhance the effectiveness of your supervisors and your caregiver employees and stem unwanted attrition. Contact us today to discuss your company’s needs.
