Imagine this: you are the mother of two children, one of whom is disabled. As a family you decide that both parents need to work full time to have adequate health insurance coverage, to make enough money to provide for your family and in particular the expenses associated with your child’s disability, generally to provide the quality of life you want, and to do work which you find satisfying. You both choose your jobs carefully, learning all you can about the companies, especially the leave and flex time policies. You follow every procedure to the “T,” equitably sharing the responsibilities of doctor appointments, teacher workdays, and parent-teacher conferences. You never go over your allotted amounts of leave.
After a couple of years, you suddenly realize that you’ve been passed over for two big promotions that have gone to your less competent co-workers. A month later the hammer falls: your husband’s boss tells him, “I’ve got to have someone reliable, not someone who has to play Mommy once a week” and fires him.
As women have increasingly joined the workforce and the aging population has begun living longer, there are more people to care for and fewer people to provide care than there were 50 years ago. At least in part to pay for the needs of dependents such as children, elderly parents, and sick or disabled family members, working age people have flocked to the workforce in droves. Companies have discovered that with favorable sick leave, flexible work schedules, in-house childcare, and other family-friendly policies, they have been better able to attract top talent.
Generally speaking, those who provide care often show themselves to be responsible individuals, and they also have the added incentive of needing to remain in stable employment since people depend on them, which promotes loyalty. These employers have enjoyed the benefit of the talents of more women and other caregivers. In turn, by family members working to support their dependents, pressure on the government to take care of these vulnerable populations is alleviated.
As a society we are to the breaking point – in the ever-elusive “work-life balance” dilemma, something has to give. Under this framework, where employers fail to follow their own policies or penalize employees for utilizing the benefits offered to them, the law is increasingly holding companies accountable.
There is a new trend in the field of employment law in the area of Family Responsibilities Discrimination (FRD), sometimes also called Caregiver Discrimination or, in appropriate circumstances, Maternal Wall Discrimination. In most regions FRD is not a separate new law, but rather a different way at looking at some of the existing laws, perhaps most notably the Pregnancy Discrimination Act, laws prohibiting discrimination on the basis of gender such as Title VII, the Family and Medical Leave Act (FMLA), and Americans with Disabilities Act (ADA) associational claims. For Title VII and ADA claims, the Equal Employment Opportunity Commission (EEOC), issued specific enforcement guidance on the topic in 2007, which was seen as a very significant step toward protecting workers with family obligations.
Hundreds of FRD claims have been brought in courts across the country, some with notable success. One of the largest awards was one in Illinois in which a male custodian received an $11.65 million verdict. The man had taken FMLA leave to care for his elderly parents who were in poor health. When he came back to work, his employer, which was a hospital of all things, established new performance standards that they applied very rigidly toward him but not to others in similar positions, and he was fired. He sued his employer under the provisions of the FMLA which prohibit retaliation for taking FMLA leave. In other situations, where employers have relied on stereotypes about gender to make decisions about how to treat employees involved in caregiving responsibilities or are punishing workers for using leave to which they are entitled, they are increasingly being found liable. Overall, the trend is toward more protection of families.
At TW&A we can help determine whether there is recourse for negative reactions to your care-giving and family responsibilities you may have received at work. Very few other firms have the specific expertise in this growing area of the law. To contact our law office, call (706) 621-4665, or contact us by e-mail.
