Overview of Family Responsibilities Discrimination. Family Responsibilities Discrimination (FRD) is an umbrella term for employment discrimination against employees who have assumed family caregiving responsibilities. FRD affects men and women across every industry and income level. Employers who harass, terminate, reject for hire, pass over for promotion, or demote an employee or job applicant due to his or her family caregiving responsibilities, and regardless of that person's performance or qualifications, may be found liable for FRD.
FRD litigation has significantly increased over the last decade. Various factors have contributed to this increase, including a greater number of employees who have caregiving responsibilities, and women's increased participation in the labor force. Over the past decade, FRD cases have risen by 269%, with a 650% increase in cases involving eldercare. There has also been a sharp increase in family caregiving cases brought by men. While the actual number remains small, cases involving paternity leave have increased by 336%.
continued on page 2 ATTORNEY ADVERTISING
In the decade ending in 2015, employees won two-thirds of the cases that went to trial, with employers paying about half a billion dollars in verdicts and settlements. This amount more than double the amount employers had paid over the previous decade.
Relevant Laws. While there is no federal or California law explicitly prohibiting discrimination against employees or job applicants based on their status as caregivers or based upon their family responsibilities, there are several federal and state statutes that can be used to provide protections to these employees. Federal statutes include Title VII of the Civil Rights Act of 1964 ("Title VII") and the American with Disabilities Act of 1990 (ADA).
Two laws in California, the Family & Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), afford protection to caregivers by providing leaves of absence, as well as bases for claims for interference with an employee's protected rights and retaliation claims for exercising rights under FMLA and CFRA.
FEDERAL STATUTES: TITLE VII AND THE ADA
The U.S. Equal Employment Opportunity Commission (EEOC) has issued an Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. This document illustrates, through extensive examples, circumstances under which discrimination against a working parent or other caregiver constitutes unlawful disparate treatment under the federal EEO statutes. The EEOC's Enforcement Guidance was issued in May 2007 and can be found here. Below are examples of FRD violations.
Title VII Violations: Unlawful Discrimination Against Women with Young Children. 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.
-- Example: A mother of two preschool-age children files an EEOC charge alleging sex discrimination after she is rejected for a job opening. The investigation reveals that the mother was better qualified than some selectees, including both men and women. In addition, while the employer selected both men and women
for the job, the only selectees with preschool-age children were men. Under the circumstances, the investigator determine that the mother was subject to discrimination based on her sex.
ADA Violations: Unlawful Stereotyping Based on Association with an Individual with a Disability. The ADA prohibits discrimination because of the disability of an individual with whom the worker has a relationship or association, such as a child, spouse, or parent. Under this provision, an employer may not treat a worker less favorably based on stereotypical assumptions about the worker's ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability. For example, an employer may not refuse to hire a job applicant whose wife has a disability because the employer assumes that the applicant would have to use frequent leave and arrive late, due to his responsibility to care for his wife.
-- Example: An employer is interviewing applicants for a job opening. The employer determines that one of the applicants is the best qualified, but is reluctant to hire him because he disclosed during the interview that he has sole custody of his son, who has a disability. The employer concluds that the candidate's caregiving responsibilities for his son may have a negative effect on his attendance and work performance, so the employer decides to offer the position to a less-qualified candidate and encourages the top candidate to apply for future openings if his caregiving responsibilities change. Under the circumstances, the employer has violated the ADA by refusing to hire the candidate because of his association with an individual with a disability.
STATE STATUTES: FMLA AND CFRA
Types of Leave. Under FMLA, employees have leave rights for any of the following reasons:
A serious health condition of the employee;
A serious health condition of a child, spouse, or parent;
The birth of a child and to care for the child;
The placement of a child with the employee for adoption or foster care;
A "Qualifying Exigency" arising out of the fact that an employee's family member is on active duty in the armed forces; or
2 Employment Law Commentary, July 2018
continued on page 3
To care for an injured servicemember or veteran during rehabilitation.
An employee is entitled to a leave of absence under CFRA because of the following reasons:
A serious health condition of the employee;
A serious health condition of a child, spouse, registered domestic partner, or parent;
The birth of a son or daughter; or
The adoption and placement of a son or daughter for foster care.
CLAIMS BROUGHT UNDER FMLA
An employer is prohibited from interfering with an eligible employee's right to take FMLA leave, or discriminating or retaliating against an employee for taking such a leave. For example:
An employee who took 16 weeks of child care leave and was not reinstated to her original or an equivalent position alleged a valid cause of action for interference, because her employer failed to give notice of her FMLA reinstatement rights.
An employee interference claim may be valid after employee is fired by his employer for excessive absenteeism if he can show a causal connection between inadequate notice and the harm. Most of the employee's absences were to care for his seriously ill son, and his employer did not provide a detailed description of employe to FMLA rights and responsibilities or post adequate notices, and his employer's supervisors and managers were not knowledgeable about FMLA.
Discrimination and retaliation claims have been rejected where the employer acted in the honest belief that the employee misused his or her FMLA leave: "Discrimination statutes allow employers to discharge employees for almost any reason whatsoever (even a mistaken but honest belief) as long as the reason is not illegal discrimination."
The court granted summary judgment in favor of the employer because the employee (who alleged she was discharged in retaliation for taking a leave of absence to adopt a child) failed to show that the employer's proffered legitimate, nondiscriminatory reason for discharging the employee was pretextual.
Although the employee received a favorable performance review prior to her taking leave, she was discharged when the employer realized that the employee had not performed a crucial function of her job. The employee also admitted that she had failed to perform that function.
An employee went on FMLA leave when his wife had a baby. While on leave, he managed his wife's restaurant, although he knew that doing so would violate a documented company policy against working for personal gain while on leave. Employer's refusal to reinstate the employee was upheld because the employee was terminated for violations of company policy, not for taking FMLA leave.
CLAIMS BROUGHT UNDER CFRA
Interference and Retaliation Claims. It is unlawful for an employer to refuse an employee's request for up to 12 weeks of "family care and medical leave" in a year. In addition, an employer may not discriminate, discharge, or retaliate against an employee for exercising any right under CFRA or for giving information or testimony in connection with any investigation or inquiry into an alleged violation of CFRA.
An at-will employee who was terminated after she took 14 weeks of medical leave could not state a valid claim against her employer under CFRA. The employer accommodated the full 12-week medical leave to which the employee was entitled under CFRA. The employer was not obligated to accommodate her claimed work restrictions after that period expired. The employee was also terminated for legitimate, nondiscriminatory performance-related causes.
An employee's right to reinstatement under CFRA expired when the 12-week protected leave period expired. Thus, the decision to transfer the employee, which was made within the leave period but not communicated to the employee until she returned after 19 weeks of leave, did not interfere with the employee's CFRA rights.
The following is a list of suggestions for best practices that employers may want to consider adopting to prevent FRD:
Focus on the applicant's qualifications for the job at issue and refrain from questions about the applicant's children, plans for a family, pregnancy, or other caregiving-related issues.
3 Employment Law Commentary, July 2018
Train managers and supervisors about the legal
The growing presence of caregivers in the workplace means
obligations that may impact decisions about
that the rate of FRD claims will continue to rise unless
treatment of workers with caregiving responsibilities. employers take appropriate steps to stop it. Although
Employers should also remind managers and
avoiding costly and damaging lawsuits is reason enough,
supervisors that caregivers include male employees, preventing FRD can have a wider organizational impact by
and that unconscious bias could play a significant
increasing inclusion, engagement, and productivity. As job
role in how managers react to employee requests for mobility rises, it can also improve the retention of good,
leave or accommodation.
trained employees. Preventing FRD will make the
Review employment policies and practices,
workplace fairer for employees with family responsibilities.
particularly those related to hiring, promotion, pay,
benefits, attendance, and leave, to determine whether Heriberto Alvarez Jr. is an associate in the firm's
they disadvantage workers with caregiving
Employment and Labor Group in the Los Angeles
office. He can be reached at (213) 892-5310 or
Respond to complaints of FRD effectively and
efficiently. Investigate complaints promptly and take corrective action to resolve the situation and prevent
To view prior issues of the ELC, click here.
problems from arising in the future.
Protect against retaliation. Provide assurances that if employees complain or provide information related to complaints about unfair treatment of caregivers, the employer will protect them from retaliation.
We are Morrison & Foerster -- a global firm of exceptional credentials. Our clients include some of the largest financial institutions, investment banks, and Fortune 100, technology, and life sciences companies. We've been included on The American Lawyer's A-List for 13 years, and the Financial Times named the firm number six on its 2013 list of the 40 most innovative firms in the United States. Chambers USA honored the firm as its sole 2014 Corporate/M&A Client Service Award winner and recognized us as both the 2013 Intellectual Property and Bankruptcy Firm of the Year. Our lawyers are committed to achieving innovative and business-minded results for our clients, while preserving the differences that make us stronger.
Because of the generality of this newsletter, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. The views expressed herein shall not be attributed to Morrison & Foerster, its attorneys, or its clients. This newsletter addresses recent employment law developments.
4 Employment Law Commentary, July 2018
2018 Morrison & Foerster LLP