August 30, 2014

Family Responsibilities Discrimination: The New Tool in the Employment Litigator’s Toolbox

Ellen Buckley is an editor at CBA-CLE and is Managing Editor of the Practitioner’s Guide to Colorado Employment Law.

Also known as caregiver discrimination, Family Responsibilities Discrimination (FRD) is discrimination against employees or job applicants because of their real or perceived obligations as caregivers.

For example, an FRD claim based on sex-based stereotyping could include assumptions that males do not require parental leave, women with children or elderly parents are unfit for management because they are not as dedicated to their jobs as men, and pregnant women will have poor attendance once their children are born.

FRD claims may also occur because of an employee’s or applicant’s relationship with a person with a disability. The Equal Employment Opportunity Commission’s May 2007 enforcement guidance, “Unlawful Disparate treatment of Workers with Caregiving Responsibilities,” gives an example of a supervisor who began treating an employee differently after discovering the man’s wife had severe multiple sclerosis. The supervisor made frequent comments about the employee’s inability to perform his job because of his need to care for his wife, although the employee was still performing his job as well as before the supervisor learned of the wife’s disability. The supervisor also applied work place policies differently to the employee than to others not associated with a person with a disability. Such actions created a hostile work environment.

Although not explicitly prohibited by federal law, FRD claims are being brought successfully under Title VII, the Americans with Disabilities Act, and the Family and Medical Leave Act. State and local laws may also apply. Given the prevalence of women in the work force and our aging population, FRD claims will likely continue to increase.

To learn more about the legal theories and statutes used as the basis of these important claims, register today for a one and a half hour program on September 20th at noon, presented by Charlotte Sweeney and Michelle Ferguson. The program is also available via live webcast.