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The Equal Employment Opportunity Commission recently announced that it may develop enforcement guidelines to address the growing problem of “family responsibility discrimination.” FRD is a legal and social science term that experts have coined for the growing phenomenon of employees suing employers for discriminating against them because of their caregiving responsibilities at home. Attorneys note that because there is no federal law on the books expressly prohibiting caregiver discrimination, FRD plaintiffs have pursued their claims under a variety of state and federal laws. The most commonly used laws in FRD lawsuits are Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act and the Family and Medical Leave Act (FMLA). During the past decade, the courts have seen a significant increase in FRD claims, from 97 cases in 1996 to 481 in 2005, according to a University of California Hastings College of the Law study. And FRD cases � won by plaintiffs more than 50% of the time, according to the study � have yielded several multimillion-dollar verdicts and settlements. Currently, more than 100 FRD lawsuits are pending against employers nationwide, stemming from a wide variety of causes. In California, a federal jury last year awarded $2 million to a female police lieutenant who alleged that the Oakland, Calif., Police Department passed her over for a promotion because she was pregnant and had young children. Glenn-Davis v. City of Oakland, No. 3:02-cv-02257-SI (N.D. Calif.). In Ohio, a jury in August 2006 awarded a $400,300 verdict to a man who alleged he was harassed and ultimately fired for taking three FMLA leaves in one year � one of them to care for his father with cancer, another to care for his wife and newborn son. Dage v. Time Warner Cable, No. 1:04-90 SJD (S.D. Ohio). A class action against AT&T Inc. alleges that the company is systematically interfering with, and retaliating against, employees seeking FMLA benefits. The plaintiffs include employees seeking time off to care for sick family members. Butler v. Illinois Bell Telephone, No. 06C5400 (N.D. Ill.). AT&T officials would not comment on the lawsuit, saying only that they deny the allegations and that “we meet all requirements of the [FMLA] law and in fact, exceed those requirements in many areas.” The largest single FRD verdict � an $11.65 million award � went to a man who charged that he was retaliated against for taking time off under the FMLA to care for his aging parents. Schultz v. Advocate Health, No. 01C-0702 (N.D. Ill. June 5, 2002). The case settled for an undisclosed amount in 2003. “I definitely see this as a problem,” said Equal Employment Opportunity Commission (EEOC) New York regional attorney Elizabeth Grossman. She added that more FRD cases are likely on the horizon “because more people are coming forward.” Smell like trouble? Given the surge in FRD claims, the EEOC announced last month that it wants to clarify what federal laws have to say about certain workplace practices that could be construed as FRD. The EEOC also wants to let employers know when their treatment of an employee rises to the level of discrimination. Many employers, however, expect more legal trouble. They fear that the EEOC is gearing up to issue some kind of guidance or rule that would make FRD a whole new category of its own, giving plaintiffs “a leg up in pursuing their claims.” “I am concerned that the EEOC might move toward making it easier to assert claims that are not necessarily justified by the statutory language of the statutes,” said Clare Draper, a partner in the labor and employment group at Atlanta’s Alston & Bird. “The fact that the EEOC held [last month's hearing] is an important item to note in the employment community,” Draper said. “From a legal standpoint this is a new area of law that they are pushing to have created by agency regulation.” Draper argued that the concept of a unified FRD is not justified � it is really a sex, pregnancy or disabilities discrimination claim. EEOC officials, however, maintain that the agency is not trying to establish a new class of discrimination claims, nor is it trying to bolster plaintiffs’ lawsuits. “We’re not creating any new category under the EEOC laws . . . .We’re looking to the extent that the existing laws apply to work-life balance issues,” said EEOC vice chairwoman Leslie Silverman. “In the short term,” Silverman said, “we’re trying to call attention to this issue so that people can realize that this can be discrimination, and to clarify where we think that line is crossed from legal to illegal behavior.” Silverman said that many employers might be acting in a discriminatory way, but not realize it. For example, when an employer penalizes a woman for leaving work early to care for her children � but doesn’t penalize men who also have similar family responsibilities � that could lead to a sex discrimination suit. Not just women And it’s not just women who struggle with stereotypes. Grossman, the EEOC official from New York, noted that men with caregiving responsibilities sometimes are treated even more harshly by some employers when they ask for more flexibility. She said her office has seen complaints filed by men who claim working mothers were granted flexible work schedules, but they were not. Joan C. Williams, director of the Center for WorkLife Law at Hastings College of the Law, said her center has documented more than 1,000 FRD cases since 1971, when the U.S. Supreme Court banned the practice of employers saying that “mothers of young children need not apply.” Phillips v. Martin Marietta, 400 U.S. 542 (1971). In Phillips, the employer refused to allow mothers of school-age children to apply for jobs that were open to men with young children and women without children. The court held that this discriminated against mothers. Legal experts believe Phillips got the FRD ball rolling. Generational shift But why so many cases now? Williams believes the increase in cases has been caused by a generational shift. Younger women feel entitled to be in the workplace and resent employers making assumptions about them. And a growing number of working men who are becoming the main caretakers at home are demanding more flexibility at work. “One of the big problems right now is that this is a new hot topic in employment law and employers are confused as to what their responsibilities are,” Williams said. Meanwhile, lawyers representing employers said FRD is not a commonplace problem in the work force, and that most employers are family-friendly with flexible leave policies for working parents. “Employers are trying their best. They want to do the right thing and they’re not trying to give people a hard time,” said labor and employment attorney David Ritter, a partner at Chicago’s Neal, Gerber & Eisenberg. “On the other hand, they have jobs that need to get done and they need people to be at work.” Ritter touched on a sensitive subject for employers and employees alike: accommodating the employee whose family obligations clearly interfere with the demands of a specific job. “This is a particular area that is concerning to employers because it gets to the heart of rewarding performance,” said Stephanie J. Quincy, partner in the Phoenix office of Washington’s Steptoe & Johnson LLP. An issue of choice Quincy, who has defended many companies in FRD cases, said that, too often, employees will claim discrimination because they didn’t get a promotion or a good assignment when in fact it was because they couldn’t put in the time that the job required due to family responsibilities. Instead, the promotions or better assignments went to the employees who could put in the longer hours, working nights and weekends. “Those additional responsibilities deserve to be rewarded,” she said. “When someone says, ‘Gee, the reason I couldn’t put in all those hours is because I have young children’ � that’s not holding someone’s gender against them, it’s holding their choice.” Quincy added that most people understand that personal choices can affect their jobs. “Take for example the job I’m in,” she said. “It would be great if you could go to a judge and say, ‘We’re going to have to stop trial every day at 4 o’clock so I can go home and get my kids.’ It just doesn’t work that way.” Connie Bertram of the Washington office of Chicago’s Winston & Strawn, who defends employers in FRD lawsuits, echoed Quincy’s sentiments. “If an employee declines to do what everyone else is expected to do, or work certain scheduled hours, then other employees have to pick up the slack and it’s unfair to them,” said Bertram. Bertram offered a piece of advice to employers on how to avoid FRD troubles. “Look at pure [job] performance and try not to guess about the things in their life that might be affecting the performance,” she said. “That’s where they get into trouble.”

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