Family Responsibility Discrimination

Headnote

Although family responsibility discrimination is not specifically prohibited by federal anti-bias laws, litigation in that area has skyrocketed in the past decade. A 2006 report by the Center for Worklife Law at the University of California Hastings College of the Law found that these types of claims had increased 400% during this period, and that employees prevailed more than 50% of the time, drawing judgments of up to $25 million. Given these statistics, this trend will likely continue. Accordingly, employers must recognize the potential for liability and take steps to avoid becoming the next defendant.

I.

SOURCES OF FAMILY RESPONSIBILITY DISCRIMINATION CLAIMS

Family Responsibility Discrimination - or FRD - is a form of gender discrimination against women or men because of their caregiving responsibilities. While the primary caregiving responsibility at issue is usually childcare, an increasing proportion of care-giving focuses on caring for the elderly and disabled. Although federal law does not prohibit such discrimination per se, both the courts and the Equal Employment Opportunity Commission (EEOC) have recognized that there are circumstances in which discrimination against caregivers might constitute both unlawful disparate treatment under Title VII and a violation of the Americans with Disabilities Act's (AD A's) prohibition against discrimination based on an employee's association with an individual with a disability. Such discrimination may also run afoul of the Family and Medical Leave Act (FMLA), the Pregnancy Discrimination Act (PDA), the Equal Pay Act of 1 963 (EPA), the Employee Retirement Income Security Act (ERISA), and the Equal Protection Clause of the U.S. Constitution. Moreover, an increasing numbers of state and local laws have cropped up specifically prohibiting discrimination against employees because they are parents or have family responsibilities. Employees have also pursued FRD cases under state common-law theories, including wrongful discharge and breach of contract.

II.

KEY STATISTICS COMPELLING EMPLOYERS TO TAKE NOTICE OF SUCH CLAIMS

In addition to the statistics above, the Center for Worklife Law report highlighted other data that employers should note, including the following:

* Plaintiffs are more likely to prevail in FRD cases than other types of employment discrimination cases;

* The average award is $100,000, and the largest award is $25 million;

* no company is immune from FRD claims; indeed, many companies on the...