VanDeusen And Hoelzer On Increasing Attention For Family Responsibilities Discrimination Litigation

VanDeusen And Hoelzer On Increasing Attention For Family Responsibilities Discrimination Litigation

Increasing attention has been paid to the work-family conflicts facing employees. No federal statute specifically prohibits discrimination against employees with non-medical caregiving obligations. There is a growing trend to try to develop theories under existing anti-discrimination laws to prohibit what has been termed Family Responsibilities Discrimination. This Emerging Issues Analysis, written by Darrell VanDeusen and Kelly Hoelzer of Kollman & Saucier P.A., explores this developing area of law. This commentary updates judicial and legislative developments in the past two years, including a review of the Equal Employment Opportunity Commission’s (EEOC) new Best Practices policy. They write:
 
“The composition of the U.S. workforce has changed dramatically over the last few decades. While the traditional family paradigm of a working dad and stay-at-home mom still exists, the number of working mothers and single-parent families has increased substantially. For Baby Boomers, more workers find that they must care for aging and ailing parents. In the past few years, increasing attention has been paid to the work-family conflict facing employees trying to balance their job responsibilities with the needs of their families. . . .

“While no federal statute specifically prohibits discrimination against employees with caregiving obligations, federal and state courts have seen a growing number of lawsuits alleging discrimination related to employees' family care responsibilities, now commonly described as Family Responsibilities Discrimination (FRD). The Center for WorkLife Law estimates that in the past decade, cases alleging some form of FRD have increased by 400%. . . .

“What issues should the practitioner faced with a possible FRD claim expect to see? The first hurdle to overcome from the plaintiff's perspective is the lack of any federal statute specifically prohibiting discrimination because of parental or family status. As indicated above, however, a plaintiff caregiver may present facts that suggest unlawful discrimination in violation of Title VII, the ADA, or the FMLA. With the EEOC's Enforcement Guidance now in place for two years, investigators are scrutinizing charges of disparate treatment brought by caregivers more closely. . . .

“Management attorneys know that the EEOC's Enforcement Guidance and its new supplement aimed at employers, offers the federal courts persuasive, if not binding, authority in analyzing future sex, sex-plus, and associational disability discrimination cases. To avoid liability, employers should minimize involvement in employees' personal obligations and refrain from making any decisions with respect to employees based on what they perceive as best for the employee. Instead, consistent and fair application of workplace policies, including any policies governing leave, flexible schedules, telecommuting, and others, for all employees, regardless of their status as a family caregiver, continues to be a best practice for employers.”
 
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