By Michele Ballard Miller, Miller Law Group
With employment discrimination charges at a 45-year high1, employers are seeing a particular increase in claims brought by workers who are pregnant or caring for young children, ill spouses or aging parents. Plaintiffs in these family responsibility discrimination cases are more likely to prevail than in any other type of employment discrimination case, drawing judgments of up to $250 million, with average awards topping $550,0002.
Employers on the “Best Companies to Work For” lists have been sued for family responsibility discrimination, proving that no employer is immune from these suits. Cases have been filed in every state, in every industry and at every company level, from low-wage workers to top management3. As a result, all employers must recognize the potential for liability and take steps to prevent it.
Examples of family responsibility discrimination – also called “caregiver discrimination” – include:
Many states – including Alaska11, Connecticut12, New Jersey13 and the District of Columbia14 – have passed laws related to family responsibility discrimination, with varying definitions of who is covered and what actions are prohibited. In addition, more than 60 cities and counties have similar provisions15. Many local FRD laws include parental or familial status as a protected class akin to sex, race and religion, and provide for administrative remedies, fines and injunctive relief16. Some jurisdictions permit monetary awards for damages, including punitive damages and attorneys' fees17. FRD claims may also be brought under state common law theories, including wrongful termination and breach of contract.
In analyzing more than 2,100 FRD cases, the Center for WorkLife Law found that caregiver discrimination fell into these categories20:
A recent notable case is Velez v. Novartis Pharmaceuticals Corp.22, in which a New York jury awarded $3.4 million in compensatory damages and $250 million in punitive damages in a class action in which the jury found discrimination against women in pay, promotion, pregnancy and family leave policies. One manager had commented, “First comes love, then comes marriage, then comes flex time and a baby carriage.” That statement, along with other evidence, cost Novartis 2.6 percent of its annual revenue.
Similarly, in Laudadio v. Johanns, a federal district court denied an employer’s summary judgment motion, noting a pattern of retaliatory conduct after a food safety inspector was denied leave and schedule-modification requests while he was caring for his terminally ill spouse and, after her death, his children23.
Family responsibility discrimination can be subtle, and even when employers’ actions are well-intentioned and perceived by the employer as being in an employee’s best interest, stereotypes can lead to FRD claims. No matter the intention, employers cannot treat workers less favorably because of gender-based assumptions, and employment decisions based on such stereotypes violate federal law. As the U.S. Supreme Court observed, “Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. These mutually reinforcing stereotypes create a self-fulfilling cycle of discrimination.”25
Companies that follow these practices will be well-prepared to meet the growing FRD challenges, including potential claims that fall into the New Supervisor Syndrome, Second Child Bias and Elder Care Effect categories:
Michele Ballard Miller is a shareholder in Miller Law Group (www.millerlawgroup.com), a 22-attorney, women-owned firm in San Francisco that devotes its practice exclusively to representing business in all aspects of California employment law. With 29 years' experience, Ms. Miller represents management in the full range of litigation, from wrongful termination to sexual harassment and disability discrimination. She also provides strategic advice on employment risk management and is a frequent lecturer on employment issues for clients and outside groups. She can be reached at firstname.lastname@example.org.
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