Family Responsibility Discrimination:
What Is It and How Will It Influence Business and Employees
BUS352 – 2012 Q5
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...