Rising Litigation Trends in Family Responsibilities Discrimination
As more parents continue to work while raising their children and the baby boomer generation gets older, discrimination in the workplace based on time off for family caregiving responsibilities is becoming more common.
Family responsibilities discrimination (FRD) arises when an employee is treated differently based on his/her family caregiving responsibilities, regardless of the employee’s actual performance. Most of the time this treatment includes denial of time off, exclusion from work events or meetings, refusal of a promotion, or a demotion because of time the employee has taken away from work to care for his/her family.
Over the past decade, the number of FRD case filings in federal court has increased significantly compared to other employment discrimination claims filed. The types of FRD cases filed most often involve elder care, pregnancy accommodation, paternity/maternity leave, and disability association. Cases involving elder care and pregnancy accommodation have seen the highest increase of filings within the past decade, while paternity/maternity leave cases have also increased slightly.
Currently, there is not federal statute that expressly prohibits discrimination based on family caregiving responsibilities. However, the most commonly used federal laws in FRD cases are:
Title VII of the Civil Rights Act of 1964
Family and Medical Leave Act of 1993
Americans with Disabilities Act of 1990
Rehabilitation Act of 1973
Employee Retirement Income Security Act of 1974
Also, some states such as Massachusetts, Pennsylvania, Michigan, and North Carolina have introduced state legislation to prevent discrimination based on family caregiver or familial status.
Although FRD cases are a fairly new type of discrimination case, the recorded outcomes in terms of trials and settlements have been predominantly in favor of the employees. In verdicts and settlements, employees have recovered almost half a billion dollars in the last decade. However, the average settlement amount is below $100,000. It is clear that employees tend to have a better chance at winning in an FRD case. This is even true when looking at outcomes of FRD cases based on region. In the Midwest region, 51% of employees win at an FRD trial. Likewise, Ohio is among the few states in the country that sees a high volume of FRD cases.
FRD cases are seen across the board in multiple industries. However, some of the industries that see a high volume of FRD complaints are professional, business, office administrative, government positions, health care, and service positions. Some of the best practices an employer can enact in the workplace to prevent FRD are supervisor training, altering personnel policies to accommodate for employees with family caregiving responsibilities, human resources oversight program, complaint filing procedure, and a work coverage program.
As family caregiving responsibilities become a more mainstream trend of working individuals, family responsibilities discrimination issues are something to keep in mind as the law develops on both the federal and state levels. More information about family responsibilities discrimination can be found at WorkLifeLaw.org. [i]
Alex Nagel is a Law Clerk at Lardiere McNair, LLC.
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