Family Responsibility Discrimination

Title VII of the Civil Rights Act of 1964 originally protecting against discrimination in employment based upon race, color, national origin, religion and gender. Such discriminations, or disparate treatments, are often easy to identify. Most companies today have established concrete policies and rules to avoid discrimination in workplace and in recruitment procedures. However, new forms of discrimination emerge as the society is constantly changing. Family responsibility discrimination (FRD) is one of them. People who do not have work experience may not be familiar with the term. According to Joan William and Consuela Pinto, FRD “also called caregiver discrimination, is discrimination against employees because of their family caregiving responsibilities.” (2008).

More specifically, “Pregnant women, mothers and fathers of young children, and employees with aging parents or sick spouses or partners may encounter FRD. They may be rejected for hire, passed over for promotion, demoted, harassed, or terminated — despite good performance — simply because their employers make personnel decisions based on stereotypical notions of how they will or should act given their family responsibilities.”( Work Life Law). According to William and Pinto, employees have been filing discrimination cases based on their caregiver status since early 1970’s after Title VII enacted. However, the number of claims is spiking in recent years. Many factors contribute to the change: employees’ desire to shift the work-life balance; the trend of aging population and dual worker families; and the increased awareness by employees of their rights.

With the increasing number of cases, there are new legal theories developed, and new state and local laws were enacted to protect employees from FRD.

Legal theories of FRD

The EEOC’s 2007 Enforcement Guidance setting out the major legal theories of disparate treatment of caregivers under Title VII and the Americans with Disabilities Act (ADA). According to George Lenard, a rapidly growing body of case law has found protections under at least 15 separate legal theories, including: Title VII, Family and Medical Leave Act (FMLA), ADA, Employee Retirement Income Security Act (ERISA) and state and local laws. Among all these theories, the most often referred are sex-plus theories and stereotyping theories under Title VII (2011). Employees can take advantage of the above-mentioned legal theories to challenge employer’s discrimination actions based on those stereotypes and biases. A mother who believes herself is treated worse than a father at work place can use sex-plus theories under Title VII to challenge the employer who makes such discrimination.

When employers make stereotypes about female workers with kids, employees also has the option to advance the stereotype theory under Title VII. Unlike sex-plus theories, stereotype theories do not require evidences that comparing with similarly situated employees of the opposite sex (Albiston, Dickson, Fishman, and Levy, 2008). In addition to these two theories, other common FRD claims are often causes of action for denial of or interference with Family and Medical Leave Act (FMLA) rights, retaliation for exercising FMLA rights, and wrongful termination. Workers of either sex who take FMLA leave cannot be penalized or discriminated against for practicing their legal rights (William & Pinto, 2008). There are many cases provided by the EEOC to demonstrate the different legal theories and how they are practiced. Example Case

The first case, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), exemplifies the unlawful disparate treatment of female caregivers as comparing with male caregivers. According to EEOC guideline, Employment decisions that discriminate against workers with caregiving responsibilities are prohibited by Title VII if they are based on sex or another protected characteristic, regardless of whether the employer discriminates more broadly against all members of the protected class. For example, sex discrimination against working mothers is prohibited by Title VII even if the employer does not discriminate against childless women (2007) In the case, a female job applicant filed an EEOC charge claiming that she is rejected due to sex discrimination.

The company explains that the company’s decision was not based on her gender, rather on her qualification and performance. Furthermore, the employer shows the fact that half of the newly recruited employees are female, so that gender really does not affect the hiring decision. However, further investigation reveals that among all the newly hired females, none of them has pre-school children as the plaintiff does. Further investigation shows that the only employees who are hired with pre-school age children are all males. Under the circumstances, the Supreme Court ruled that Charmaine was subjected to discrimination based on her sex. As the Court concludes, “Under Title VII of the Civil Rights Act of 1964, an employer may not, in the absence of business necessity, refuse to hire women with pre-school-age children while hiring men with such children. (Kolinsky, 2012)”

The second case demonstrates the unlawful gender role stereotyping of working women. The EEOC guidance agrees that most families do assume the caretaking responsibilities on women, and female workers may reduce their work responsibilities when they become caregivers, Title VII prohibits employers to treat female workers less favorably based on the gender-based assumption that a particular female worker’s caregiving responsibilities will interfere with her work performance (2007). As aforementioned, stereotype theories do not require evidences that comparing with similarly situated employees of the opposite sex. One type of stereotyping is the gender-based assumptions about future caregiving responsibilities. Such assumptions rely on stereotypes of traditional gender roles. Some employers may assume that childcare responsibilities will make female employees less dependable than male employees, even if a female worker does not have any child or will not become pregnant in near future.

As Christine Dickson discusses in his paper, such stereotypes may force female job applicants to remove their wedding rings before going into an interview (2008). EEOC provides an example of such unlawful stereotyping in hiring process. Patricia is a recent business school graduate. She was interviewed for a marketing assistant position in a public relations firm. At the interview, Bob, the manager of the department with the vacancy being filled, noticed Patricia’s wedding ring, so he asked if she had any child. Patricia answered that she does not have child yet, but is planning to have one once she finds a job. Then, rather than discussion Patricia’s qualification, Bob started asking about how Patricia would balance her caregiving responsibilities and her job duties. Bob later told his secretary that he was concerned about hiring Patricia. He didn’t believe that being a mother was “compatible with a fast-paced business environment.”

A week after the interview, Patricia was notified that she was not hired. Believing that she was well-qualified for the marketing assistant position, and that the interviewer’s questions reflected gender bias, Patricia filed a sex discrimination charge with the EEOC. The investigator discovered that the employer reopened the position after rejecting Patricia. The employer explained that it reposted the position because applicants in the first round did not meet the requirements of that position. However, Patricia’s experience can easily meet the requirements for the position and was as much qualified as some other recently hired marketing assistants. Under the circumstances, the investigator determines that the respondent rejected Patricia from the first round of hiring because of sex-based stereotypes in violation of Title VII (EEOC, 2007). In addition to common stereotyping and discriminations against female employees, male employees also face discriminations against them when caregiving issues come into place. According to Supreme Court records, “gender-based stereotypes also influence how male workers are perceived”, that stereotypes of men as “bread winners” can further lead to the denial of their caregiving responsibilities (Von Bergen & Ballare, 2008).

Eric, an elementary school teacher, requests unpaid leave for the upcoming school year in order to take care for his newborn son. Although the school has a policy that allows for up to one year of unpaid leave for personal reasons, including caring for a newborn, the Personnel Director denies his request. When Eric points out that female teachers have been granted childcare leave, the Director responds that the case is different, that the school has to give childcare leave to women. He suggests that Eric can instead request unpaid emergency leave, though that is limited to 90 days. After Eric filed charge against the school with EEOC, investigator determined this is a violation of Title VII because “the employer is denying male employees a type of leave, unrelated to pregnancy, that it is granting to female employees” (2007).

According to EEOC guidance, “employment decisions that are based on an employee’s actual work performance, rather than assumptions or stereotypes do not generally violate Title VII, even if an employee’s unsatisfactory work performance is attributable to caregiving responsibilities”(2007). In a case provided by EECO guidance, Carla, an associate in a law firm, returned from maternity leave, she began missing work frequently because of her difficulty in obtaining childcare and was unable to meet several important deadlines. As a result, the firm lost a big client, and Carla was given a written warning about her performance.

Carla’s continued childcare difficulties resulted in her missing further deadlines for several important projects. Two months after Carla was given the written warning, the firm transferred her to another department, where she would be excluded from most high-profile cases but would perform work that has fewer time constraints. Carla filed a charge alleging sex discrimination. The investigation revealed that Carla was treated comparably to other employees, both male and female, who had missed deadlines on high-profile projects or otherwise performed unsatisfactorily and had failed to improve within a reasonable period of time. Therefore, the employer did not violate Title VII by transferring Carla.

Elements in the Theories and Application

U.S. court cases have revealed how caregivers are subject to a variety of stereotypes and bias in the workplace such as prescriptive stereotyping, descriptive stereotyping, and cognitive bias or competency assumptions (Dickson, 2008). According to Burgess and Borgida, prescriptive stereotyping occurs when organizations assume that male and female employees will follow traditional gender roles such as men have primary responsibility at work and women have primary responsibility at home. In the case of Knussman v. Maryland (2004), the organization denied the male plaintiff’s right to Federal Family Medical Leave for the birth of his child because the supervisor work was considered the employee’s primary responsibility (1999). In addition, descriptive stereotyping occurs when organizations assume that employees will follow traditional gender roles (Burgess & Borgida, 1999).

For example, in Back v. Hastings (2004) the organization assumed that the female plaintiff would not be interested in working additional hours because family was assumed to be her primary responsibility (Williams & Segal, 2003). Finally, cognitive bias or competency assumptions occur when
organizations assume that “family caregivers are no longer competent, committed, or dedicated workers” (Dickson, 2008). For example, in Plaetzer v. Borton Automotive, Inc. (2004), the female plaintiff was told by her manager that “a woman with a family would always be at a disadvantage at the dealership” and that mothers should stay home with her children (Williams & Segal, 2003). This example reveals how motherhood can trigger cognitive bias or competency assumptions (Dickson, 2008).

Suggestions to Employers and Employees

Family Responsibility Discrimination is increasingly raising concerns at workplace, as some of the stereotypes are perceived by both employers and employees. Some of them may not be aware of the issue until law suits were filed against with them.

Employers are responsible to be familiar with the EEOC guidance and other related laws, such as Title VII, FMLA, and ADA. In practice, they should try to avoid the denial of employees’ legal rights to take care of their family members, regardless of their gender. As cases revealed, even male employees have responsibilities to take care for their pre-school aged children.

Meanwhile, employees also need to learn related laws to protect themselves from potential stereotypes, biases, retaliation on their FMLA leaves, and other relative issues. Also, employees need to learn the companies’ policies regarding work performance to avoid misunderstandings.

Conclusion

In sum, FRD has been becoming an issue that concerns the employers and employees. However, due to the stereotypes and assumptions, some of the caregiving rights of employees are still being compromised. In order to protect employees’ legal rights, and also help employers reduce related costs, both sides should actively keep updated to the change of legislation and regulation. Also, government agencies and social groups have more works to do in order to promote societal recognition on the issue.

References
Albiston,C, Dickson, K.B, Fishman, C, and Levy, L.F. (2008 June). Ten Lessons
for Practitioners About Family Responsibilities Discrimination and Stereotyping Evidence. Hastings Law Journal Vol. 59, 1285-1310. Retrieved on Dec 5, 2012 from http://www.law.berkeley.edu/files/chefs/KT_10_lessons_for_practictioners Back v. Hastings on Hudson Union Free School District, (2d Cir. 2004). Retrieved on Dec 8, 2012 from http://caselaw.findlaw.com/us-2nd-circuit/1450732.html Burgess, D., & Borgida, E. (1999). Who women are, who women should be: Descriptive and prescriptive stereotyping in sex discrimination. Psychology, Public Policy, and Law, 5(3), 1–28. Retrieved on Dec 8, 2012 from EBSCOhost Database. Dickson, C. (2008). Antecedents and Consequences of Perceived Family Responsibility Discrimination in Workplace. Psychologist-Manager Journal; 2008, Vol. 11 Issue 1, pp113-140. Retrieved on November 2, 2012, from EBSCOhost Database Equal Employment Opportunity Commission. (2007, May 23). Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. Retrieved on Dec 2, 2012 from http://www.eeoc.gov/policy/docs/caregiving.html#discrmale Knussman v. Maryland, (4th Cir. 2004). Retrieved on Dec 8, 2012 from http://caselaw.findlaw.com/us-4th-circuit/1402217.html Kolinsky, H. ( 2012). Taking Away An Employer’s Free Pass: Making The Case For a More Sophisticated Sex-Plus Analysis In Employment Discrimination Cases. Vermont Law Review, Vol 36, Book 2, 327-353. Retrieved on Dec. 6, 2012 from http://lawreview.vermontlaw.edu/files/2012/02/12-Kolinsky-Book-2-Vol.-36.pdf.. Leonard, G. (2011, February 14). Family Responsibilities Discrimination Quiz. Retrieved on Dec 5, 2012. http://www.hdfh.com/2011/02/family-responsibilities-discrimination-quiz/ Von Bergen, A and Ballare, D. (2008). Family Responsibilities Discrimination: What Employment Counselors Need to Know. Journal of Employment Counseling; Sep2008, Vol. 45 Issue 3, p115-130. Retrieved on November 2, 2012, from EBSCOhost Database William, J and Pinto, C. (2008) Family Responsibilities Discrimination: Don’t Get Caught Off Guard. Retrieved on Dec 1, 2012 from http://www.meetings.abanet.org/labor/lel-aba-annual/2008/pdf/Williams1.pdf Williams, J., & Segal, N. (2003). Beyond the maternal wall: Relief for family caregivers who are discriminated against on the job. Harvard Women’s