Look out for family responsibilities bias

The executive was fuming. One of his supervisors had just alluded to her responsibilities with her children – again – and his gut told him she wasn’t paying full attention to her duties at work. Female managers “let you down,” he fulminated. They “lose focus” when they have kids.

Um, sir, you probably shouldn’t have said that. These comments, along with the alleged denial of promotions to scores of female employees across the country, led to an EEOC lawsuit and, eventually, a $19 million settlement by the company, Outback Steakhouse.

Gaining traction on Family Responsibilities Discrimination
The law that caught Outback was Title VII’s prohibition against sex discrimination at work.

But the case provides a great and timely illustration of the broader dangers of so-called “family responsibilities discrimination” (FRD), a concept that has gained growing legal traction in the past few years.

At the federal level, FRD is something of a grab bag, because there’s no special federal law about discriminating against employees because of their family duties.

Plaintiffs’ lawyers wielding the FRD hammer in federal court lawsuits have to bang on specific nails – the FMLA, the Pregnancy Discrimination Act, the ADA, Title VII – to build their case. All of these laws contain FRD-type provisions.

Localities on the bandwagon
What’s new – and increasingly high risk for employers – is the fact that states and localities have piled onto the FRD bandwagon in recent years, pushed by activist groups such as the Center for WorkLife Law at the University of California.

In a new report, the center says that at least 63 cities and counties in 22 states – including large population centers like Chicago; Boston; Atlanta; Tucson, AZ; Kansas City, MO; and Tacoma, WA – now have some kind of FRD law on the books. Add to that three states and the District of Columbia with state-wide laws, and you’ve got a substantial reason for employers to be wary.

These laws, unlike federal law, get very specific in prohibiting discrimination against employees because of their family responsibilities.

How FRD is defined
For example, 51 of the local laws bar discrimination against employees who have or live with a minor child or dependent, or are in the process of gaining custody of the child or dependent.

Other localities go farther, with some protecting employees from discrimination due to their relationship with any blood relative, or even due to a caregiver relationship with any dependent, whether or not that person is related by blood.

In its report, the center notes that some local laws allow employees to take their FRD grievances to court while others direct them to administrative agencies.

But in either case, the stakes can be high: In one case in Chicago, the local Human Relations Commission levied a $215,000 fine plus $87,000 in legal costs on one employer, which was accused of first asking an applicant whether her children would “prevent her from working 70 hours a week,” and then offering her the job at a salary one third less than that of childless co-workers.

Limiting your risk against discrimination lawsuites
What can a conscientious employer do to be fair to employees with family responsibilities, and also to minimize the risk of legal action?

Here are four ideas:

1. Add family responsibilities to your existing policy on kinds of discrimination to be avoided.
2. Create a new and separate policy banning family responsibility bias. This is more conspicuous, and opens up an opportunity to train supervisors.
3. Make sure employees understand that FRD may apply to anyone with family responsibilities, not just employees who are parents. (For example, mature employees may have caregiving duties to their elderly parents.)
4. Check existing policies for problems. Examples: Policies on attendance, leave, hiring and promotion all need to be family-situation-neutral.

photo credit: Cushing Memorial Library