The issue is called family responsibilities discrimination (FRD), and before the 1990s, it made rare appearances on the employment law stage.
But, according to Cynthia Calvert, an employment law expert who helped pioneer the research behind FRD, the trend has continued to rise rapidly— especially over the last 10 years.
Calvert, president of Workforce 21C, a consulting and training firm for women-focused workplace issues, explains that FRD claims typically rise because of a conflict between what employers expect – employees who are available 24/7 with no outside obligations – and what employees can actually provide.
"The workforce has changed from the days back in the 1960s when only one adult, usually a man, worked in the paid workforce and another adult was available to take care of the family work," she says.
Today few American families are set up that way. Almost two-thirds of employees live in households where all the adults are in the paid workforce (that includes single heads of household as well as dual earner households). And the need for caregiving is rising.
Adding fuel to the fire is the expectation that employees should be able to combine work and lives outside of work, which has grown the demand for flexibility.
"So, we have these changes in the workforce, but very few changes in employers' expectations and the traditional structure of how work gets done," Calvert says. "This leads to frustration on the part of both parties, which can boil over into the courtroom."
Study finds FRD litigation skyrocketing
Along with her day job, Calvert, a lawyer, speaker, writer and consultant, serves as the Senior Advisor for Family Responsibilities Discrimination at the Center for WorkLife Law (WLL), based at the University of California Hastings College of the Law. In that role, she recently authored a detailed study of FRD, "Caregivers in the Workplace: Family Responsibilities Discrimination Litigation," that highlights important FRD trends that employers and HR leaders learn about.
For the study, Calvert and her team analyzed about 4,400 employment lawsuits filed in claims related to balancing employee's family responsibilities with work. Of the FRD cases studied, 67% related to pregnancy and maternity leave, 11% involved eldercare and 15% connected to care for sick spouses or children.
Not only did the study report a dramatic increase in FRD cases filed over the last decade (up 267%), but also found a much higher percentage of such cases end up as trial victories for plaintiffs (67%) when compared to employment cases in general.
In fact, FRD cases kept increasing as the overall number of employment cases filed in federal courts went down, she notes. Translated into cash, employers (or their insurers) lost almost half a billion dollars in FRD verdicts and settlements in the last decade ($477,009,417 from 2006 to 2015).
Calvert's research found the areas experiencing the most dramatic rise in the last 10 years include:
- Eldercare (650%)
- Pregnancy accommodation (315%)
- Denials of accommodations for (or discrimination against) employees who were breastfeeding or needed to express milk (800%)
- Cases related to association with an individual who has a disability (400%).
More laws trying to help
Calvert reports that several states, counties and cities have laws that expressly prohibit family FRD in employment, including New York and Minnesota (and in a more limited sense in Alaska and Connecticut), the District of Columbia, New York City, Chicago, Boston, Philadelphia, and San Francisco. (There are almost 100 such laws, she adds). Other jurisdictions are considering legislation to add "family responsibilities" or "family status" as protected categories to their anti-discrimination laws.
"HR leaders should know that many of these laws allow employees to file lawsuits, allow emotional distress and punitive damages, provide for attorney's fees, and contain no damages cap," she says.
In addition, the new federal regulations for federal contractors prohibit family FRD, which affects almost 22 million employees, Calvert says.
Even if there are no local laws in play, FRD claims are primarily brought as sex (including pregnancy) discrimination claims under Title VII, family leave claims under the FMLA, and disability and disability association claims under the Americans with Disabilities Act.
"The majority of FRD cases arise because of antiquated workplace biases," she says. "Supervisors are trying to do the right thing, trying to have an engaged and productive workforce, but they are going about it the wrong way using old-fashioned expectations."
3 HR best practices
Calvert offers a few best practices to HR leaders looking to stem the tide of FRD litigation, including:
- Training for supervisors is critical
Supervisors need to understand not only what FRD is and how it violates the law, but also why it arises. Once they understand how bias influences decisions and the common biases many have about caregivers, they can start using techniques to reduce the effects of bias, she says. A key point that should be made in training is that caregivers are not undesirable employees who need to be terminated or encouraged to quit. Rather, they should learn that all employees will likely be caregivers at some point during their careers, and the employer will do better financially and otherwise by retaining caregivers and managing them well.
- HR's role is of paramount importance
HR leaders and professionals need to know everything the supervisors need to know. Plus, they need to be able to anticipate and recognize FRD, monitor for its effects, and conduct an effective investigation of FRD complaints. As it says in the report, it appears that FRD frequently involves new supervisors. Knowing that, HR professionals can more closely monitor employment decisions made by new supervisors and be ready to step in with coaching or oversight.
- Work coverage plan is required
Employers also should implement a work coverage plan that describes for each employee (whether a caregiver or not) how his or her work would get done if he or she were on leave for several months. This could involve the employee coming up with a draft and working with his or her supervisor to refine, and then the two of them could review the plan briefly during annual performance reviews to see if it needs to be updated.
"This strategy has at least two strong benefits," Calvert says. "First, it ensures continued productivity when an employee is gone for an extended period. And it also changes supervisors' expectations by having them recognize that all employees are likely to be gone for a long leave at some point during their careers, and prevents them from feeling frustrated or caught off-guard by the absence."