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May 1 — Workplace discrimination against men and women who have family caregiving responsibilities is sometimes intentional and expressed through hard-to-believe insensitive remarks by managers, but often it is the result of “unconscious bias,” an attorney and employee training consultant said April 30.
Participating in a Bloomberg BNA webinar, Cynthia Thomas Calvert, an attorney and president of Ellicott City, Md.-based training and consulting firm Workforce 21C, said “if supervisors are going to notice and remember mothers doing caregiving things” that may disrupt the flow of work “and not notice or remember people who are not mothers doing similar things,” it can affect how the supervisors will handle decisions on important matters such as promotions.
Calvert said she coined the term “family responsibilities discrimination,” which she defined as “discrimination against applicants and employees who have family caregiving responsibilities, such as pregnant women, mothers and fathers of young, ill or disabled children, and workers who care for their aging, ill or disabled parents, spouses or partners.”
Federal law does not reference family responsibilities discrimination as such, but almost 90 counties and cities have ordinances that mention “familial status,” “parenthood” or “family responsibilities,” according to Calvert.
For example, she said, the District of Columbia expressly bars family responsibilities discrimination in employment, Alaska bars discrimination based on parenthood and Connecticut forbids asking for information about family responsibilities unless it is related to a bona fide occupational qualification. Some local and state laws provide for a private right of action and uncapped damages, and some apply to small employers and contractors, Calvert said, so it is worth all employers' while to familiarize themselves with the concept.
The unconscious bias problem is a particularly difficult one for employers to tackle, according to Calvert. For example, she said, supervisors or co-workers may assume that a pregnant woman is not as competent or committed as her colleagues, that she is not dependable, and that it isn't even worth trying to accommodate her needs because she “will just quit” anyway. But that last one “is a self-fulfilling prophecy,” Calvert said.
An employer may act out of benevolent intentions toward a pregnant employee so that the employee is steered away from stressful assignments. Unfortunately, these kindly intentions result in “creating a mommy track,” Calvert said.
Advised of considerations like this, people Calvert has trained “sometimes throw their hands up and say ‘what should I do?' The answer is ask, don’t assume,” she said.
Another example of unconscious bias against caregivers Calvert discussed is a situation where there is a choice between two “great candidates” for a position. Both are women, she said, but the one who isn’t a mother is chosen based on “a gut feeling she is more likely to succeed.”
Family responsibilities discrimination may violate a variety of federal, state and other laws under different names, according to Calvert, including:
• Title VII of the 1964 Civil Rights Act, the Pregnancy Discrimination Act and similar state anti-discrimination statutes. Lawsuits may be filed under a sex discrimination theory relating to stereotypes about mothers, although men can sue under such theories, too.
• The Family and Medical Leave Act and related and state leave laws. According to Calvert, most male plaintiffs use the FMLA if they have been denied leave or discriminated against because they took leave—in the latter case, the claims are for interference with FMLA rights, retaliation or discrimination.
• The Americans With Disabilities Act. This usually comes into play through pregnancy or an employee’s association with a family member who has a disability, e.g., a mother with a disabled child who is turned down for a promotion or not hired out of fear she will burden the employer with high health insurance costs.
• Common law, such as wrongful discharge, contract, fraud, infliction of emotional distress or promissory estoppel.
According to statistics from the Center for WorkLife Law that Calvert cited, more than 3,900 family responsibilities discrimination cases have been filed nationally; plaintiffs win at trial or settle favorably about half the time; 12 percent of cases have been brought by men; the biggest individual verdict was for $11.65 million; and the biggest class action verdict was for $250 million.
Developing a stand-alone or add-on policy to deal specifically with family responsibilities discrimination has many benefits, Calvert said, such as affirming the employer’s commitment to a family-friendly workplace, promoting awareness of work and family issues, and possibly averting punitive damages in case of a lawsuit. Policy areas to review include those on attendance, leave, promotion, flexible work arrangements, performance evaluations, compensation and benefits, she said.
Offering flexible work schedules can be a good way to manage employees with caregiving responsibilities, Calvert said, but not if the employees who avail themselves of them are stigmatized and “it tends to be a career ender.”
However, she added that there may be disadvantages to having an official family responsibilities discrimination policy if the organization is operating in a jurisdiction that does not specifically ban it. In such cases, Calvert said, a policy may create liability and may “stir up awareness” among employees, some attorneys believe.
Other best practices include offering training on family responsibilities discrimination to HR and supervisors; reviewing demographics, such as whether there are any women with young children in upper management; having HR watch new supervisors, who “may feel they have to ‘clean house' and may not know the value of a caregiving employee”; having a grievance procedure; and doing fair and well-documented investigations when necessary.
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