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“Family responsibilities discrimination” has � up to now � been little more than a hot buzz phrase thrown around during the schmooze and red wine hour before dinner at human resources conferences. State laws, a U.S. Supreme Court decision, brand-new U.S. Equal Employment Opportunity Commission (EEOC) guidance and even a little academic theorizing, however, may be coming together to elevate the idea from cocktail conversation to legislative reality. Employment discrimination law is already an alphabet soup of acronyms. Why not one more? “FRD” � family responsibilities discrimination � simply put is disparate treatment based on an employee’s obligations to his or her relatives or others who may be swept into what seems to be an ever-mushier definition of “family.” Of course, there are plenty of laws on the books right now that prohibit what could be called FRD. For example, under the Family and Medical Leave Act (FMLA), qualified employees are entitled to unpaid leave for up to 12 weeks per 12-month period not only for their own serious health condition but also to care for a family member with a serious health condition. Leave also can be used for the birth, adoption or placement of a child for foster care. Similarly, under the Americans With Disabilities Act (ADA), not only are qualified applicants and employees with disabilities protected from discrimination in the workplace, but qualified applicants and employees also are protected from discrimination based on their relationship or association with an individual who has a disability. In other words, an employer cannot discriminate against an otherwise qualified applicant who has a severely disabled child based upon an assumption that the parent will have excessive absences. But what if a job applicant says in the interview that she can only take the job if flex-time is available because she has child care issues or an elderly parent at home to care for? Declining to hire this applicant based on the demand for flex-time might not violate existing federal law or many state laws with similar provisions. However, an FRD statute might very well mean that the employer’s refusal to hire this applicant would put it at risk of a violation. The law isn’t there yet (in most states, anyway), but it may be soon. How did this come about? How far might it go? Intellectual foundations Much theoretical and practical foundation for the emergence of FRD has been done at the Center for WorkLife Law of the University of California Hastings College of the Law in San Francisco. The center maintains an extensive Web site that offers information to employers, employees, attorneys, unions, the press and others with a stake in this issue. The site broadly defines FRD as “discrimination against workers who have family caregiving responsibilities.” The site offers model employment policies, an attorney network, conferences and briefings, issues briefs (one title: “All Workers Deserve a Few Days of Paid Family/Medical Leave”), case law monitoring and much more. See www.worklifelaw.org/pubs/paidleavefactsheet.pdf. Hastings College is hardly alone in the field, however. A number of other law schools and other organizations are contributing to the intellectual ferment. Some are forthright that their mission is advocacy. For example, Workplace Flexibility 2010, an Alfred P. Sloan Foundation initiative located at Georgetown University Law Center, declares in its mission statement that it supports “the development of a comprehensive national policy on workplace flexibility.” According to the statement, workplace flexibility includes “the ability to enjoy different kinds of part-time work without suffering disproportionate economic or job-related penalties, control over the timing of one’s work (if the particular industry allows for that) and provisions for employees to deal with unexpected emergencies and daily, logistical needs.” See www.law.georgetown.edu/workplaceflexibility2010/about/mission.cfm. Other organizations and institutions providing an intellectual foundation for FRD or related concepts include the Center for Work and Family at Boston College, the Labor Project for Working Families in Berkeley, Calif., and the National Partnership for Women & Families, formerly the Women’s Legal Defense Fund. These entities represent a range of philosophical, legal, social and economic perspectives, but all are adding to the social and research underpinnings that may eventually stand behind state and national FRD statutes. Legal framework FRD is already more than just the subject matter of the day for do-good organizations or a law professor’s pet project for eager students. FRD is making its way into state laws, local ordinances and direction from the federal government. For example, Alaska Stat. 18.80.220 prohibits employment discrimination based on “marital status, changes in marital status, pregnancy, or parenthood.” The District of Columbia’s Human Rights Law prohibits employment discrimination based on “family responsibilities.” See D.C. Code � 2-1402.11. An amendment to California’s employment discrimination law that is pending in the state Assembly would prohibit discrimination based on “familial status.” A pending amendment to Pennsylvania’s Human Relations Act would protect both “familial status” and “marital status.” A proposed local law in New York City would prohibit employment discrimination based on an individual’s actual or perceived status as a “caregiver.” It’s not just the buzzwords that make an FRD law. For instance, a Florida law that went into effect on July 1 requires employers to give employees up to three days of unpaid domestic violence leave every 12 months. Fla. Stat. ch. 741.313. The leave can be used for specified reasons such as attending court hearings or meetings with attorneys, seeking a new residence or seeking help. California and Illinois have similar laws on the books. From a national perspective, perhaps the most important recent development in FRD law was the EEOC’s May 23 Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, which addresses how the current array of federal laws offer protection to caregivers. The EEOC has made it clear that current federal law does not prohibit discrimination per se against caregivers and that the guidance is not intended to create a new protected category. See www.eeoc.gov/policy/docs/caregiving.html. As background, the EEOC noted that Title VII’s prohibition against sex discrimination has contributed to more women entering the workplace. It also noted that family caregiving responsibilities are not limited to children but also extend to the elderly, recognizing that the need for such care is expected to increase as the Baby Boomers grow ever older. Additionally, while women are still disproportionately responsible for family caregiving, the commission observed, more men are sharing those responsibilities. The result of these social changes is that individuals may have limited employment opportunities as a result of their family responsibilities. These limitations affect not only lower-paid workers but also professionals who may have more control of their own schedules but also more demands on their time. For instance, an employer’s mandatory overtime policy might affect an hourly worker’s ability to work because of child care concerns or costs. The same family responsibilities might place a professional under the glass ceiling simply because he or she does not have enough hours in the day for work and family responsibilities. The EEOC points out that limitations on employment opportunities also may be due to employer stereotyping. For instance, sex-based stereotyping about caregiving responsibilities could lead to men being denied leave to care for a seriously ill child or could cause employers to doubt the commitment of otherwise qualified women in the belief that their loyalties lie mainly at home. Stereotyping as it relates to caregiving or family responsibilities can also limit employment opportunities based on race or ethnicity. For example, an employer may believe that women in such categories are more likely to be single parents and, thus, have less ability to work late. The guidance gives numerous factual scenarios depicting circumstances in which disparate treatment based on a legally protected classification could be connected to family responsibilities. For instance, it discusses disparate treatment of female caregivers and male caregivers, both based upon assumptions about traditional male and female roles. It provides examples of unlawful stereotyping based on participation in a flex-time arrangement (i.e., “she/he can’t possibly be doing as much work”) or pregnancy. It also addresses unlawful caregiver stereotyping under the ADA, whereby an individual is denied an employment opportunity based upon an assumption that caregiving responsibilities will harm attendance and performance. The guidance encourages employers to adopt best practices to make it easier for workers, regardless of sex, race or ethnicity, to balance work and family responsibilities. The EEOC advances the idea that such polices increase job performance and employee satisfaction, and save employers money in the form of retention costs. Moreover, employers that rid themselves of unsupported stereotypes also may save attorney fees. ‘Burlington Northern’ Beyond the regulatory efforts and employment philosophies of the EEOC, the Supreme Court’s 2006 Burlington Northern decision established that FRD already exists in Title VII, other federal discrimination laws and the many state laws patterned on them. The plaintiff in Burlington Northern sued under Title VII, claiming that she was retaliated against by her employer when, after she complained about sexual harassment, she was given a less desirable work assignment. The employer argued that a mere change in assignments could not constitute an adverse action under the law. The Supreme Court took the opportunity to expand the scope of employer conduct that could constitute prohibited retaliation. The court said, “[T]he significance of any given act of retaliation will often depend upon the circumstances . . . .A schedule change . . . may make little difference to many workers, but may matter enormously to a young mother with school age children.” Burlington Northern v. White, 126 S. Ct. 2405, 2415 (2006). With this decision, the Supreme Court enshrined the central concept of FRD in the law. So, is FRD the next employment tort? It’s not “next.” It’s already here. Executive Order 11478, as amended in 2000, prohibits discrimination in federal employment based on “status as a parent.” See www.eeoc.gov/federal/eo11478/eo11478.html. Alaska and the District of Columbia ban it outright. Florida, California and Illinois provide for and protect leave because of incidents of domestic violence. California, Pennsylvania and New York City are considering outright FRD protection. Existing federal and state laws prohibit FRD in limited forms, as recognized by the EEOC’s guidance. If FRD is not here, it’s pounding on the door. Workplace policies As such, employers must deal with it, either voluntarily or courtesy of the plaintiffs’ bar. Advocates advise employers to embrace the concept and empower employees to balance family and workplace responsibilities by offering understanding, flexible scheduling, support and flexible and paid time off. Whatever an employer’s philosophical bent, FRD affects a vast number of U.S. workplaces, if only through the expanded world of retaliation under Burlington Northern and through the existing state and federal laws that nibble around the edges of FRD. The best practice, therefore, is to have workable policies that either outright prohibit FRD or that recognize that family responsibility considerations could lead to claims of unlawful discrimination. An effective FRD policy will reiterate the employer’s commitment to providing equal employment opportunities regardless of a person’s protected status. “FRD” or “parent” need only be added in jurisdictions that have a law elevating caregivers or parents to a protected status. Employer policies should state that a person’s protected status will not be taken into consideration when making any employment decisions. If the employer offers flex-time or personal leave, it should be sure that the use of it will not harm employment opportunities. Policies also should offer employees avenues for complaints. Of course, the policy should prohibit retaliation against anyone who questions a personnel action that she believes was made on the basis of illegal discrimination. Policies have to be put into action, and action means training. Depending on the policy, training can target managers and supervisors or can be extended to rank-and-file employees. Effective manager and supervisor training will teach how to understand the nature of FRD and how to avoid it. Special care must be taken relating to any employee who has opposed alleged discrimination or has participated in the investigation or remedying of it. Supervisors must be sensitive to any known circumstances affecting such an employee that could make actions toward that employee burdensome, even if they might not bother most employees. Manager and supervisor training must include an understanding of privacy and the limits on inquiry created by various laws, including the ADA, FMLA and the Health Insurance Portability and Accountability Act. Rank-and-file employees might receive training in policies requiring them to report perceived FRD in a timely fashion and cooperate in its investigation. FRD is here � mostly in disguise and traveling under some other name, but here all the same. The academics, the advocates, the administrators and the judges are all dealing with it now. It seems only a matter of time, and not much time at that, until the legislators get their shot and bring FRD out into the open and wearing its own name. Denise M. Heekin and David C. Miller are shareholders in the Miami office of Akerman Senterfitt. Each is board-certified by the Florida Bar in labor and employment law. They can be reached, respectively, at [email protected] and [email protected].

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