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Mothers of young children are almost twice as likely to be employed today than their counterparts were 30 years ago, according to the EEOC. In addition to childcare duties, many of today's employees have caregiving responsibilities for elderly and disabled relatives.

The prevalence of caregivers in the workplace can lead to the following stereotypes, the EEOC warns:
The EEOC "strongly encourages employers to adopt best practices to make it easier for all workers, whether male or female, to balance work and personal responsibilities. There is substantial evidence that workplace flexibility enhances employee satisfaction and job performance."

- EEOC Enforcement Guidance 
Unlawful Disparate Treatment
of Workers with Caregiving Responsibilities

Laws Involved

    Although there is no federal law specifically prohibiting discrimination based on family responsibilities, here are some of the federal laws that have been used in these type of lawsuits (There may also be state laws that provide additional protection:
    Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin. It specifically covers pregnancy-based discrimination.
    The Equal Pay Act of 1963, which protects men and women who perform substantially equal work from sex-based wage discrimination.
    The Family and Medical Leave Act, which gives employees up to 12 weeks of unpaid leave for certain family and medical reasons.

  • Women with children or elderly relatives to care for are less competent than other workers and are more committed to their families than their jobs.
  • Males who share in the responsibilities of caregiving face the perception that they are not well suited to it. 

"Employment decisions based on such stereotypes violate the federal antidiscrimination statutes, even when an employer acts upon such stereotypes unconsciously or reflexively," the EEOC states.

In its report, Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, the EEOC notes that making employment decisions based on stereotypes is illegal "because the antidiscrimination laws entitle individuals to be evaluated as individuals rather than members of groups having certain average characteristics."

Not surprisingly, more caregivers in the workplace facing discrimination has led to more employers landing in court

Employees with family responsibilities are suing their employers in increasing numbers, according to a report from the Hastings College of Law at the University of California. In these cases, employees charge they are discriminated against because of stereotypical attitudes toward those who care for children, elderly parents, ill spouses and other family members.  

And they are winning substantial awards or settlements, according to the report titled Litigating the Maternal Wall. The average award is just over $100,000, although awards have gone as high as $25 million.

Here are some interesting statistics to illustrate the trend:

Family Responsibilities Discrimination Lawsuits Number of cases

In the 1970s

8

1986 - 1995

 97

1996 - 2005

481


According to the researchers, women file more than 92 percent of the cases, most under Title VII of the Civil Rights Act of 1964, as well as various state and federal statutes. (See right-hand box for some of the laws involved.)

However, the key to a family responsibilities discrimination case is not gender discrimination. Rather, it is job bias against anyone -- male, female, parent or non-parent -- based on stereotypes about caregivers.

The first major decision in family responsibilities discrimination was Phillips v. Martin Marietta Corp., in which the Supreme Court in 1971 ruled that employers could not refuse to hire women with school-aged children while hiring men with children the same age. Essentially, organizations cannot have separate hiring rules for men and women.

But one more recent case illustrates how one employee's career goals were thwarted because of job bias related to traditional concepts of mothering.
 
A sales manager for the mattress company Sealy Inc. sued her employer, charging that she was a victim of family responsibilities discrimination. She had been passed over for a promotion in favor of a younger male. The manager's supervisor admitted that although the woman was qualified for the job, he didn't give her the promotion because she had children and he assumed she did not want to relocate her family.

At one point, the supervisor also asked the manager why "her husband wasn't going to take care of her."

In ruling for the employee, the court noted that the plaintiff inquired about the promotion and "repeatedly expressed" a willingness to relocate. The court also determined that although the employer did eventually promote the woman, it was simply an attempt to correct its earlier mistake.

The woman was awarded compensatory damages of $100,000, $1,500 in back pay, and punitive damages of $1,000,000. The total award was later reduced to $301,500, plus back pay, because of a statutory cap on damages. (Lust v. Sealy, Inc., 383 F3d 580 7th Circuit, 2004)

It isn't just large employers who are the targets of these suits. The report states, "The types of employees and companies represented in (family responsibilities discrimination) lawsuits vary enormously, from small businesses to the nation's largest and most highly regarded companies."

The report also notes: "Companies that mismanage their work/life programs tend to fare poorly in court."    

What This Could Mean for Your Organization

According to the University of California report, there is "every indication" that these types of cases are going to increase. "Accordingly, it is critical that employers recognize the potential for liability and take necessary steps to avoid being the next defendant," it adds. Keeping that in mind, here are six tips:

1. Ensure company managers and supervisors don't engage in stereotyping the roles that men or women caregivers should play at work and home. Supervisors and managers sometimes assume employees with family responsibilities will have productivity or attendance problems, will provide care instead of doing work when telecommuting, will not take business trips, and will not accept promotions.

2. Review your company's policies and practices to avoid bias and help employees balance family obligations with work obligations. A policy that appears to be neutral can turn into a discriminatory case when applied to someone with family responsibilities. For example, restrictions on leave or absences within certain periods of time become discriminatory if a female employee needs to attend doctor's appointments because she becomes pregnant but cannot take time off during her first six months of employment.

3. Add parental and caregiver status to your company's anti-discrimination policies or make the issue a policy of its own.

4. Encourage managers and supervisors to make personnel decisions based on accomplishments and business needs rather than assumptions about an employee's level of commitment.

5. Offer training to help managers and supervisors with discriminatory attitudes they may be unaware they have.

6. Rethink your company's work/family policies and programs. They should be regarded "not as fringe benefits that can be withdrawn without consequences but as tools for managing future risk," according to the report.

For assistance with your organization's policies, procedures, handbook and training, consult with your attorney and HR advisers. To read the EEOC report, click here.


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