The pandemic has put more employees than ever in the difficult position of juggling their work demands with their caregiving obligations. Employees have begun to return to the workplace yet COVID drags on, making this an ideal time for employers to bone up on the risks of family responsibilities discrimination (FRD) — and how they can mitigate them.
What is FRD?
FRD, also known as caregiver discrimination, refers to employment discrimination against employees and job applicants based on their family caregiving obligations. It encompasses everything from passing over these individuals for hiring or promotion to harassment to wrongful termination.
For purposes of FRD, the term “family” generally includes:
- Minor children (biological, adoptive, step, or foster children, legal wards, or children for whom the employee stands “in loco parentis” by assuming the obligations of a parent)
- Adult children with disabilities
- Parents (biological, adoptive, step, or foster, or anyone who cared or financially supported the employee on a daily basis)
- Spouses as defined by the relevant state law, which may include domestic partners, unmarried partners, or common law married partners
Why FRD matters
The Harvard Business Review recently reported that today’s employees prioritize flexibility and family and personal interests when looking for new job opportunities. One obvious reason is that even pre-pandemic, more employees were shouldering caregiving responsibilities, whether for children, senior citizens, individuals with disabilities, or some combination.
As Millennials — the largest generation in the U.S. workforce — have postponed parenthood longer than earlier generations, they’ve increasingly found themselves in a so-called “sandwich” situation, tasked with caring for both their young children and their aging parents. Employers that want to recruit and retain valuable employees straining under their work and personal obligations can’t afford to hold their family responsibilities against them.
Beyond the practical operational reasons why FRD should be avoided, employers that discriminate based on caregiving responsibilities face numerous legal risks. Although no federal law explicitly prohibits FRD, aggrieved employees or applicants have multiple anti-discrimination laws under which they can bring claims, or file a complaint with the Equal Employment Opportunity Commission (EEOC), including:
- Title VII Of the Civil Rights Act of 1964 (which bans sex discrimination)
- The Family and Medical Leave Act (FMLA)
- The Americans with Disabilities Act (ADA)
- The Pregnancy Discrimination Act
- The Equal Pay Act
- State and local laws
Several states, counties, and cities [BN1] have statutes directly addressing FRD in some way, including Alaska, Delaware, the District of Columbia, Minnesota, New York, Cook County (Ill.), Atlanta, Milwaukee, New York City, Philadelphia, San Francisco, and Tampa. The laws vary as to which family members and employers are covered.
How FRD happens
FRD can result from formal policies and procedures, as well as informal actions by managers and supervisors. It often arises from antiquated notions about how workers should act due to their family obligations.
Common examples of FRD include:
- Giving employees without family obligations better assignments or promotions than more qualified employees with such obligations
- Asking female applicants about their child care responsibilities, but not male
- Terminating or demoting employees who become pregnant
- Terminating or demoting employees whose partners or parents develop a serious health condition
- Scheduling parents for times that interfere with childcare but allowing nonparents to select their schedules
- Retaliating against employees who request FMLA leave or leave under state family and medical leave acts (for example, demoting them, reducing their pay, or terminating them)
- Failing to provide reasonable accommodations for pregnant workers
- Denying caregiving-related leave to a male employee
- Denying breaks and private space for lactation
It’s important to understand that an employment action can be unlawfully discriminatory, even if it’s done with the best intentions. For example, the supervisor who doesn’t offer overtime to a mother he knows needs to pick up her kids from daycare at a particular time.
How to avoid FRD
The good news is that you can take steps to preempt — or least minimize — the costly discrimination claims, recruiting and retention problems, and reputational damage that can come from allegations of FRD.
1. Perform an FRD assessment
Don’t wait for an administrative charge or lawsuit to tip you off about FRD going on in your workplace. Instead, take the time to closely scrutinize your existing employment policies for potential discriminatory effects against caregivers. Relevant policies include those on:
You should also look for red flags that you have the kind of culture or environment where FRD could crop up, such as:
- No caregivers among the company’s leaders
- High turnover among caregivers
- Poor performance reviews of caregivers
- Disproportionate discipline against caregivers
- A lack of flexible work options
- Grumbling from managers and supervisors about leave requests
2. Update your policies and procedures
If you don’t already have an equal employment opportunity or anti-discrimination policy, work with an attorney to develop one. If you do have one, ensure that it addresses the types of conduct that could lead to FRD.
You also need a straightforward procedure for dealing with complaints of FRD. Employees must understand how to lodge complaints, and all complaints should be treated seriously and without retaliation.
3. Conduct FRD-specific training
Train your managers and supervisors on the policies and procedures, along with the types of workplace scenarios where they might take actions that could constitute FRD. Discuss common stereotyped assumptions and misconceptions about caregivers, explain how FRD hurts the company in the long run, and review the relevant laws.
You should spend a good chunk of time on the FMLA and any applicable state counterpart. If you have a formal human resources (HR) department, drill into managers and supervisors that they should refer all employees requesting family and medical leave to HR or at least consult with the department before responding to such requests. And they must avoid making “joking” or derisive comments that could come back to haunt you in a courtroom or just the court of public opinion.
4. Document, document, document
Regardless of whether you have an HR department, it’s critical that you document the handling of each and every request for leave or other accommodation request related to caregiving. You can’t always head off lawsuits, and your documentation will play a vital role in your defense should you land in court.
You should also carefully document the reasoning behind any adverse employment decisions, including terminations, layoffs, or demotions. Include any supporting evidence (for example, a record of absenteeism or disciplinary write-ups) for the decision.
5. Cultivate a caregiving-friendly culture
Take proactive steps to foster an environment that’s supportive to caregivers. You’ll likely end up with greater collegiality, higher productivity, and improved recruitment and retention. After all, it’s rare that a business will never have employees with family caregiving responsibilities.