Vermont Bar Journal
Fall 2008 - #9.
Family Care Commitments and Discrimination in the Workforce
The Vermont Bar Journal #175, Volume 34, No. 3 FALL 2008
by Beth A. Danon, Esq.Family Care Commitments and Discrimination in the Workforce"Due to your pregnancy, your position is being terminated effective immediately." This is precisely what an employer wrote in a termination letter to a client of my firm at the time. This was in the early 1990s and, of course, we brought a pregnancy discrimination case against the employer in federal court under the Pregnancy Discrimination Act of 1978.(fn1) The PDA amended Title VII of the Civil Rights Act of 1964, to require employers to treat pregnant women employees the same as they do other temporarily-disabled employees.(fn2) But what happens to the same employee after she has given birth when her employer tells her she is being passed over for a promotion because she has "little ones" at home to tend to? The PDA prohibits discrimination based on pregnancy, but it does not provide protection for new mothers, or fathers for that matter. And, neither "mother," "father," "parent," or "caregiver" are protected classifications under Title VII of the Civil Rights Act.
Nevertheless, employment lawyers have found a way to bring these cases, utilizing a variety of existing discrimination laws, especially Title VII, to attack these barriers for employees who have caregiving responsibilities.(fn3) This area of the law has come to be known as "family responsibilities discrimination."(fn4) It also is sometimes referred to as "sexplus" discrimination.(fn5) And FRD litigation has vastly increased in recent years. According to a study undertaken by the Center for WorkLife Law at the University of California Hastings College of Law, there has been an almost 400 percent increase in the number of FRD cases filed in federal and state court during the ten year period from 1996 through 2005 than in the previous ten years.(fn6) In addition, according to the same study, the Center found that plaintiffs are more likely to win FRD lawsuits than other types of employment discrimination cases.(fn7)
Most likely, FRD cases have grown proportionally to the increase of women joining the workforce. As the U.S. Equal Employment Opportunity Commission concluded,
The prohibition against sex discrimination under Title VII has made it easier for women to enter the labor force. Since Congress enacted Title VII, the proportion of women who work outside the home has significantly increased, and women now comprise nearly half of the U.S. labor force. The rise has been most dramatic for mothers of young children, who are almost twice as likely to be employed today as were their counterparts 30 years ago. The total amount of time that couples with children spend working has also increased. Income from women's employment is important to the economic security of many families, particularly among lower-paid workers, and accounts for over one-third of the income in families where both parents work.(fn8)
Of course, as the EEOC points out, caregiving is not just limited to childcare. "An increasing proportion of caregiving goes to the elderly, and this trend will likely continue as the Baby Boomer population ages. As with childcare, women are primarily responsible for caring for society's elderly, including care of parents, in-laws, and spouses."(fn9) It is also notable that because of the Baby Boomer generation, we are moving toward a new phenomenon where "those between the ages of 30 and 60 are more likely to face work responsibilities alongside both childcare and eldercare responsibilities."(fn10) This age group is known as the "sandwich generation."(fn11) Unfortunately, bias against mothers and caregivers in the workplace has continued despite the changing times. Fortunately, there are ways to redress the problem.
What Is FRD?
FRD is a form of sex stereotyping discrimination in which workers are either not hired or promoted, or harassed, or treated less favorably in the workforce because they have caregiving responsibilities. At times, even a gender neutral policy, such as mandatory ability to relocate to be promoted, can have a discriminatory disparate impact on employees who have caregiving responsibilities.(fn12)
Some examples of FRD claims include:
* Using an employee's family plans as hiring criteria.(fn13) * Denying tenure to an employee because she has small children.(fn14) * Putting mothers on a rotating shift when specifically asked not to do so because of childcare needs, whereas male employees' similar requests were permitted.(fn15) * Supervisor harassment and retaliation of a female employee who worked erratic hours to meet the needs of her four children.(fn16) * Employer rejecting a male employee's request for family leave to care for a newborn on the basis that his wife...