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It starts with the best of intentions. A company wants to be family-friendly, a workplace conducive to work-life balance. It allows some employees to work flexible schedules, but does so without first creating a flexible workplace policy or consulting in-house counsel. Decisions on flexibility are left to each manager, leading to differences among managers as to what is permitted and what is not. There is the appearance that female employees with young children are being given more latitude in terms of hours than their male counterparts and other women. An employee complains to human resources, and the threat of litigation looms over the company. This company has fallen into one of sev-eral parent traps that arise when companies treat parents differently – sometimes more favorably, sometimes less favorably – than other employees. While parents are not a protected class, claims based on an employee’s status as a parent or nonparent may be pursued successfully under existing causes of action, frequently sex discrimination. These complaints may be brought as disparate treatment claims (female employees are treated less favorably than males because of their sex) or gender stereotyping claims (female employees are discriminated against for failing to conform to traditional female stereotypes). Last year, the Equal Employment Oppor-tunity Commission issued guidelines ad-dressing discrimination against employees who are caregivers – not only of children but also of the elderly and disabled – and outlined those kinds of claims that have been and may continue to be brought successfully against employers. Such claims – often characterized as family responsibilities discrimination – rose over 400 percent between 1996 and 2005, according to a 2006 study by Hastings College of the Law’s Center for WorkLife Lawhttp://www.worklifelaw.org/. But the news isn’t all bad. In-house coun-sel can help reduce the chances of a lawsuit, generally by advising managers to treat similarly situated employees the same regardless of their family responsibilities and never to make an employment decision on the basis of an employee’s status as a parent or nonparent. In addition, there are a few specific rules that in-house counsel should share with human resources and the company’s managers. First, in-house counsel should instruct managers and others to avoid “family talk” during the interview process. In an attempt to get a sense of an applicant’s personality, interviewers may ask seemingly innocuous questions about the applicant’s personal life. Even if the interviewer does not ask such questions during the formal interview process, it is not uncommon for this to be the subject of the small talk that precedes or follows the formal interview. If possible, interviewers should avoid any discussion of an applicant’s personal life at any time during the interview process. The more a company knows about an applicant’s family situation, the more risk there is that an applicant could claim that a decision not to hire was based on this information and argue that this amounted to sex discrimination – or perhaps another recognized form of discrimination. Information regarding how an applicant will respond to certain situations in the workplace can best be gleaned from carefully crafted behavioral and situational interview questions. Sometimes, however, an applicant will share personal information without being asked. While it is important not to appear insensitive or outright hostile to personal disclosures, interviewers should do their best not to ask follow-up questions and to guide the applicant to another topic of conversation. Another common parent trap is assuming that an employee wouldn’t want certain opportunities because of family obligations – for example, a promotion that requires relocation to another city or a choice assignment that involves frequent travel and/or long hours. Employees have successfully brought and won sex stereotyping claims with similar facts. To avoid this parent trap, in-house coun-sel should instruct managers to never make assumptions about an employee’s interest or lack thereof in an assignment or position. The decision on pursuing such opportunities rests solely with the employee. Once employees have thrown their hats into the ring, the ball is passed to the manager to decide – based on objective, documented criteria – to whom the opportunity should be awarded. Employers can run into trouble when they fail to document performance deficiencies, but problems can also arise when such documentation focuses on the cause of the deficiencies.
Balancing Acts
Work-life balance is increasingly an issue for burned-out lawyers of both genders, parents in particular. Law students interviewing at firms increasingly ask whether they’ll have a life once they have a job. Our roundup keeps track of this hot topic for you.

For example, sometimes employees re-veal family situations accidentally, such as when they are habitually late to work. The employee apologizes each time, and even-tually explains to her manager that the de-lays are due to unavoidable circumstances at the child’s day care. Should the manager, consistent with the company’s progressive discipline policy, issue a written warning, she needs to carefully reiterate the company’s lateness policy and simply cite lateness as the basis for the warning. If the manager writes the employee up for “showing a lack of commitment to her work by putting her parenting responsibilities before her responsibilities to the company,” the company faces a serious liability issue. By focusing on the reason for the tardiness rather than the fact that the employee was late, this employer has fallen into yet another parent trap. In the event that the company treats other employees who are late for reasons unrelated to child care responsibilities more favorably than this employee, the company’s in-house counsel may find herself defending the company in a discrimination claim, likely predicated on the employee’s sex. And it’s not just about lateness. Some 74 percent of employers offer alternative work arrangements, according to a Hewitt Asso-ciates 2005 survey of major U.S. employ-ers. However, offering flexible work options without a flexible workplace policy creates the risk that the opportunity will be granted inconsistently. Employers without flexible workplace policies sometimes give increased flexibility to women with young children but deny this opportunity to other employees (often men). Employers should avoid granting flexibility according to the reason for the request, and focus on objective eligibility criteria – for example, department or position, duration of employment, discipline history, performance record and/or history with regard to accuracy and timely reporting of hours worked that are clearly explained in a flexible workplace policy. A flexible workplace policy should also make clear that not all eligible employees will be permitted to work a flexible sched-ule. Rather, this decision will be made solely by the company on the basis of a variety of factors, including the requirements of the job, the amount of interaction with other employees/customers/clients/vendors required by the job, the amount of day-to-day supervision required, the type of arrangement requested, the business needs of the company, and the availability of others when the employee is not available. Decisions regarding flexible work ar-rangements should not be left to managers alone. Consistency can be assured only if higher-level management, in-house counsel, and/or human resources are also involved. To maximize consistent treatment and minimize legal risk, managers should be trained on the flexible workplace policy, including how to manage employees working flexible schedules. For example, evaluations of employees working flexible work schedules should focus on the employees’ performance rather than on their presence – or lack thereof – in the workplace. With employees increasingly sensitive to signs of favoritism, in a society highly fo-cused on families and children, the balancing act for corporations is complex and fraught with peril. When employers give inferior – or even preferential – treatment to parents, they fall into the increasingly dangerous parent trap and create the risk of a discrimination claim based on sex or other protected status. In-house counsel increasingly must help minimize this risk for their companies by implementing policies and practices that make it more likely that all employees will be treated the same regardless of their parenting obligations. Jennifer Blum Feldman is a partner at Wolf, Block, Schorr and Solis-Cohen specializing in employment law compliance, particularly with regard to EEO and wage-and-hour issues. This article originally appeared in Corporate Counsel magazine, a Recorder affiliate based in New York City. Practice Center articles inform readers on developments in substantive law, practice issues or law firm management. Contact Sheela Kamath with submissions or questions at [email protected] or www.callaw.com/submissions.

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